*100 Per Curiam.
On December 8, 2000, the Supreme Court of Florida ordered that the Circuit Court of Leon County tabulate by hand 9,000 ballots in Miami-Dade County. It also ordered the inclusion in the certified vote totals of 215 votes identified in Palm Beach County and 168 votes identified in Miami-Dade County for Vice President Albert Gore, Jr., and Senator Joseph Lieberman, Democratic candidates for President and Vice President. The State Supreme Court noted that petitioner George W. Bush asserted that the net gain for Vice President Gore in Palm Beach County was 176 votes, and directed the Circuit Court to resolve that dispute on remand. Gore v. Harris, 772 So. 2d 1243, 1248, n. 6. The court further held that relief would require manual recounts in all Florida counties where so-called "undervotes" had not been subject to manual tabulation. The court ordered all manual recounts to begin at once. Governor Bush and Richard Cheney, Republican candidates for President and Vice President, filed an emergency application for a stay of this mandate. On December 9, we granted the application, treated the application as a petition for a writ of certiorari, and granted certiorari. Post, p. 1046.
The proceedings leading to the present controversy are discussed in some detail in our opinion in Bush v. Palm Beach County Canvassing Bd., ante, p. 70 (per curiam) (Bush I). On November 8, 2000, the day following the Presidential election, the Florida Division of Elections reported that petitioner Bush had received 2,909,135 votes, and respondent Gore had received 2,907,351 votes, a margin of 101*101 1,784 for Governor Bush. Because Governor Bush's margin of victory was less than "one-half of a percent . . . of the votes cast," an automatic machine recount was conducted under § 102.141(4) of the Florida Election Code, the results of which showed Governor Bush still winning the race but by a diminished margin. Vice President Gore then sought manual recounts in Volusia, Palm Beach, Broward, and Miami-Dade Counties, pursuant to Florida's election protest provisions. Fla. Stat. Ann. § 102.166 (Supp. 2001). A dispute arose concerning the deadline for local county canvassing boards to submit their returns to the Secretary of State (Secretary). The Secretary declined to waive the November 14 deadline imposed by statute. §§ 102.111, 102.112. The Florida Supreme Court, however, set the deadline at November 26. We granted certiorari and vacated the Florida Supreme Court's decision, finding considerable uncertainty as to the grounds on which it was based. Bush I, ante, at 78. On December 11, the Florida Supreme Court issued a decision on remand reinstating that date. Palm Beach County Canvassing Bd. v. Harris, 772 So. 2d 1273, 1290.
On November 26, the Florida Elections Canvassing Commission certified the results of the election and declared Governor Bush the winner of Florida's 25 electoral votes. On November 27, Vice President Gore, pursuant to Florida's contest provisions, filed a complaint in Leon County Circuit Court contesting the certification. Fla. Stat. Ann. § 102.168 (Supp. 2001). He sought relief pursuant to § 102.168(3)(c), which provides that "[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" shall be grounds for a contest. The Circuit Court denied relief, stating that Vice President Gore failed to meet his burden of proof. He appealed to the First District Court of Appeal, which certified the matter to the Florida Supreme Court.
Accepting jurisdiction, the Florida Supreme Court affirmed in part and reversed in part. Gore v. Harris, 772 102*102 So. 2d 1243 (2000). The court held that the Circuit Court had been correct to reject Vice President Gore's challenge to the results certified in Nassau County and his challenge to the Palm Beach County Canvassing Board's determination that 3,300 ballots cast in that county were not, in the statutory phrase, "legal votes."
The Supreme Court held that Vice President Gore had satisfied his burden of proof under § 102.168(3)(c) with respect to his challenge to Miami-Dade County's failure to tabulate, by manual count, 9,000 ballots on which the machines had failed to detect a vote for President ("undervotes"). Id., at 1256. Noting the closeness of the election, the court explained that "[o]n this record, there can be no question that there are legal votes within the 9,000 uncounted votes sufficient to place the results of this election in doubt." Id., at 1261. A "legal vote," as determined by the Supreme Court, is "one in which there is a `clear indication of the intent of the voter.' " Id., at 1257. The court therefore ordered a hand recount of the 9,000 ballots in Miami-Dade County. Observing that the contest provisions vest broad discretion in the circuit judge to "provide any relief appropriate under such circumstances," § 102.168(8), the Supreme Court further held that the Circuit Court could order "the Supervisor of Elections and the Canvassing Boards, as well as the necessary public officials, in all counties that have not conducted a manual recount or tabulation of the undervotes . . . to do so forthwith, said tabulation to take place in the individual counties where the ballots are located." Id., at 1262.
The Supreme Court also determined that Palm Beach County and Miami-Dade County, in their earlier manual recounts, had identified a net gain of 215 and 168 legal votes, respectively, for Vice President Gore. Id., at 1260. Rejecting the Circuit Court's conclusion that Palm Beach County lacked the authority to include the 215 net votes submitted 103*103 past the November 26 deadline, the Supreme Court explained that the deadline was not intended to exclude votes identified after that date through ongoing manual recounts. As to Miami-Dade County, the court concluded that although the 168 votes identified were the result of a partial recount, they were "legal votes [that] could change the outcome of the election." Ibid. The Supreme Court therefore directed the Circuit Court to include those totals in the certified results, subject to resolution of the actual vote total from the Miami-Dade partial recount.
The petition presents the following questions: whether the Florida Supreme Court established new standards for resolving Presidential election contests, thereby violating Art. II, § 1, cl. 2, of the United States Constitution and failing to comply with 3 U. S. C. § 5, and whether the use of standardless manual recounts violates the Equal Protection and Due Process Clauses. With respect to the equal protection question, we find a violation of the Equal Protection Clause.
The closeness of this election, and the multitude of legal challenges which have followed in its wake, have brought into sharp focus a common, if heretofore unnoticed, phenomenon. Nationwide statistics reveal that an estimated 2% of ballots cast do not register a vote for President for whatever reason, including deliberately choosing no candidate at all or some voter error, such as voting for two candidates or insufficiently marking a ballot. See Ho, More Than 2M Ballots Uncounted, AP Online (Nov. 28, 2000); Kelley, Balloting Problems Not Rare But Only in a Very Close Election Do Mistakes and Mismarking Make a Difference, Omaha World-Herald (Nov. 15, 2000). In certifying election results, the votes eligible for inclusion in the certification are the votes meeting the properly established legal requirements.
104*104 This case has shown that punchcard balloting machines can produce an unfortunate number of ballots which are not punched in a clean, complete way by the voter. After the current counting, it is likely legislative bodies nationwide will examine ways to improve the mechanisms and machinery for voting.
The individual citizen has no federal constitutional right to vote for electors for the President of the United States unless and until the state legislature chooses a statewide election as the means to implement its power to appoint members of the electoral college. U. S. Const., Art. II, § 1. This is the source for the statement in McPherson v. Blacker, 146 U. S. 1, 35 (1892), that the state legislature's power to select the manner for appointing electors is plenary; it may, if it so chooses, select the electors itself, which indeed was the manner used by state legislatures in several States for many years after the framing of our Constitution. Id., at 28-33. History has now favored the voter, and in each of the several States the citizens themselves vote for Presidential electors. When the state legislature vests the right to vote for President in its people, the right to vote as the legislature has prescribed is fundamental; and one source of its fundamental nature lies in the equal weight accorded to each vote and the equal dignity owed to each voter. The State, of course, after granting the franchise in the special context of Article II, can take back the power to appoint electors. See id., at 35 ("`[T]here is no doubt of the right of the legislature to resume the power at any time, for it can neither be taken away nor abdicated' ") (quoting S. Rep. No. 395, 43d Cong., 1st Sess., 9 (1874)).
The right to vote is protected in more than the initial allocation of the franchise. Equal protection applies as well to the manner of its exercise. Having once granted the right to vote on equal terms, the State may not, by later arbitrary and disparate treatment, value one person's vote over that 105*105 of another. See, e. g., Harper v. Virginia Bd. of Elections, 383 U. S. 663, 665 (1966) ("[O]nce the franchise is granted to the electorate, lines may not be drawn which are inconsistent with the Equal Protection Clause of the Fourteenth Amendment"). It must be remembered that "the right of suffrage can be denied by a debasement or dilution of the weight of a citizen's vote just as effectively as by wholly prohibiting the free exercise of the franchise." Reynolds v. Sims, 377 U. S. 533, 555 (1964).
There is no difference between the two sides of the present controversy on these basic propositions. Respondents say that the very purpose of vindicating the right to vote justifies the recount procedures now at issue. The question before us, however, is whether the recount procedures the Florida Supreme Court has adopted are consistent with its obligation to avoid arbitrary and disparate treatment of the members of its electorate.
Much of the controversy seems to revolve around ballot cards designed to be perforated by a stylus but which, either through error or deliberate omission, have not been perforated with sufficient precision for a machine to register the perforations. In some cases a piece of the card—a chad—is hanging, say, by two corners. In other cases there is no separation at all, just an indentation.
The Florida Supreme Court has ordered that the intent of the voter be discerned from such ballots. For purposes of resolving the equal protection challenge, it is not necessary to decide whether the Florida Supreme Court had the authority under the legislative scheme for resolving election disputes to define what a legal vote is and to mandate a manual recount implementing that definition. The recount mechanisms implemented in response to the decisions of the Florida Supreme Court do not satisfy the minimum requirement for nonarbitrary treatment of voters necessary to secure the fundamental right. Florida's basic command for the count of legally cast votes is to consider the "intent of 106*106 the voter." 772 So. 2d, at 1262. This is unobjectionable as an abstract proposition and a starting principle. The problem inheres in the absence of specific standards to ensure its equal application. The formulation of uniform rules to determine intent based on these recurring circumstances is practicable and, we conclude, necessary.
The law does not refrain from searching for the intent of the actor in a multitude of circumstances; and in some cases the general command to ascertain intent is not susceptible to much further refinement. In this instance, however, the question is not whether to believe a witness but how to interpret the marks or holes or scratches on an inanimate object, a piece of cardboard or paper which, it is said, might not have registered as a vote during the machine count. The factfinder confronts a thing, not a person. The search for intent can be confined by specific rules designed to ensure uniform treatment.
The want of those rules here has led to unequal evaluation of ballots in various respects. See id., at 1267 (Wells, C. J., dissenting) ("Should a county canvassing board count or not count a `dimpled chad' where the voter is able to successfully dislodge the chad in every other contest on that ballot? Here, the county canvassing boards disagree"). As seems to have been acknowledged at oral argument, the standards for accepting or rejecting contested ballots might vary not only from county to county but indeed within a single county from one recount team to another.
The record provides some examples. A monitor in Miami-Dade County testified at trial that he observed that three members of the county canvassing board applied different standards in defining a legal vote. 3 Tr. 497, 499 (Dec. 3, 2000). And testimony at trial also revealed that at least one county changed its evaluative standards during the counting process. Palm Beach County, for example, began the process with a 1990 guideline which precluded counting completely attached chads, switched to a rule that considered 107*107 a vote to be legal if any light could be seen through a chad, changed back to the 1990 rule, and then abandoned any pretense of a per se rule, only to have a court order that the county consider dimpled chads legal. This is not a process with sufficient guarantees of equal treatment.
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 constitutional 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.
The State Supreme Court ratified this uneven treatment. It mandated that the recount totals from two counties, 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 certification by the Secretary, 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, 108*108 the so-called overvotes. Neither category will be counted by the machine. This is not a trivial concern. 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 machine may still have his vote counted in a manual recount; on the other hand, the citizen who marks two candidates in a way discernible 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 indicia of intent. Furthermore, the citizen who marks two candidates, only one of which is discernible by the machine, 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 standards exemplifies concerns with the remedial processes that were under way.
That brings the analysis to yet a further equal protection 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 respondents' 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 772 So. 2d, at 1261-1262, 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 established by the Florida Supreme Court in Palm Beach County Canvassing Bd. v. Harris, at respondents' own urging. The press of time does not diminish the constitutional concern. A desire for speed is not a general excuse for ignoring equal protection guarantees.
109*109 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 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 protection in election processes generally presents many complexities.
The question before the Court is not whether local entities, in the exercise of their expertise, may develop different 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 recount 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 unconstitutional 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 instance, of the estimated 110,000 overvotes has not been 110*110 addressed, although Chief Justice Wells called attention to the concern in his dissenting opinion. See 772 So. 2d, at 1264, n. 26.
Upon due consideration of the difficulties identified to this point, it is obvious that the recount cannot be conducted in compliance with the requirements of equal protection and due process without substantial additional work. It would require not only the adoption (after opportunity for argument) of adequate statewide standards for determining what is a legal vote, and practicable procedures to implement them, but also orderly judicial review of any disputed matters that might arise. In addition, the Secretary 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 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, as required by Fla. Stat. Ann. § 101.015 (Supp. 2001).
The Supreme Court of Florida has said that the legislature intended the State's electors to "participat[e] fully in the federal electoral process," as provided in 3 U. S. C. § 5. 772 So. 2d, at 1289; see also Palm Beach County Canvassing Bd. v. Harris, 772 So. 2d 1220, 1237 (Fla. 2000). That statute, in turn, requires that any controversy 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.
111*111 Seven Justices of the Court agree that there are constitutional problems with the recount ordered by the Florida Supreme Court that demand a remedy. See post, at 134 (Souter, J., dissenting); post, at 145-146 (Breyer, J., dissenting). 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 remedy—remanding to the Florida Supreme Court for its ordering of a constitutionally proper contest until December 18—contemplates action in violation of the Florida Election Code, and hence could not be part of an "appropriate" order authorized by Fla. Stat. Ann. § 102.168(8) (Supp. 2001).
* * *
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 contending 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 reversed, 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.
Chief Justice Rehnquist, with whom Justice Scalia and Justice Thomas join, concurring.
We join the per curiam opinion. We write separately because we believe there are additional grounds that require us to reverse the Florida Supreme Court's decision.
We deal here not with an ordinary election, but with an election for the President of the United States. In Burroughs 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 [(1890)]), they exercise federal functions under, and discharge duties in virtue of authority conferred by, the Constitution of the United States. The President 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 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, 113*113 the text of the election law itself, and not just its interpretation by the courts of the States, takes on independent significance.
In McPherson v. Blacker, 146 U. S. 1 (1892), we explained that Art. II, § 1, cl. 2, "convey[s] the broadest power of determination" and "leaves it to the legislature exclusively to define the method" of appointment. 146 U. S., at 27. A significant departure from the legislative scheme for appointing Presidential electors presents a federal constitutional question.
Title 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 selection 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 78:
"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 election, 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 post election 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 114*114 State (Secretary), Fla. Stat. Ann. § 97.012(1) (Supp. 2001), 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 infringed 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., Mullaney 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. Petitioner had sought a state-law writ of certiorari in the Alabama Supreme Court when a writ of mandamus, according 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 115*115 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 Supreme 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 present case is precisely parallel: hold 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.
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.
Acting pursuant to its constitutional grant of authority, the Florida Legislature has created a detailed, if not perfectly crafted, statutory scheme that provides for appointment of Presidential electors by direct election. Fla. Stat. Ann. § 103.011 (1992). 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 supporting such candidates." Ibid. The legislature has designated the Secretary as the "chief election officer," with the responsibility to "[o]btain and maintain uniformity in the application, operation, and interpretation of the election laws." Fla. Stat. Ann. § 97.012 (Supp. 2001). The state legislature has delegated to county canvassing boards the duties of administering 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] judgments [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 0.5% or less, conduct a mandatory recount. Fla. Stat. Ann. § 102.141(4) (Supp. 2001). 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 117*117 election results. Section 102.166 governs protests. 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, "[t]he 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 tabulation system; (b) Request the Department of State to verify the tabulation software; or (c) Manually recount all ballots," § 102.166(5). In the event a canvassing board 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 contesting 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 appropriate Florida circuit court, § 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 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." 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 election controversies.
In its first decision, Palm Beach Canvassing Bd. v. Harris, 772 So. 2d 1220 (2000) (Harris I), the Florida Supreme Court extended the 7-day statutory certification deadline established 118*118 by the legislature. 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 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. Ann. § 102.112 (Supp. 2001). 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.
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 119*119 marked ballots. Each Florida precinct before election day provides instructions on how properly to cast a vote, Fla. Stat. Ann. § 101.46 (1992); each polling place on election day contains a working model of the voting machine it uses, Fla. Stat. Ann. § 101.5611 (Supp. 2001); 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:
"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 Brief for Respondent Harris et al. 13, n. 5.
No reasonable person would call it "an error in the vote tabulation," Fla. Stat. Ann. § 102.166(5) (Supp. 2001), or a "rejection of . . . legal votes," § 102.168(3)(c), when electronic or electro mechanical 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 legislature is one in which machines are required to be "capable of correctly counting votes," § 101.5606(4), but which nonetheless 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, 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 Elections). The Florida Supreme Court, 120*120 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 embraced the peculiar one. See Palm Beach County Canvassing Bd. v. Harris, 772 So. 2d 1273 (2000) (Harris 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 improperly 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 Chief Justice Wells pointed out in his dissent in Gore v. Harris, 772 So. 2d 1243, 1267 (2000) (Harris II), entirely irrelevant. 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., O. T. 2000, No. 00-836, pp. 39-40; 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 established practice, prescribed by the Secretary, the state official charged by the legislature with "responsibility to . . . [o]btain and maintain uniformity in the application, operation, and interpretation of the election laws," § 97.012(1), was to depart from the legislative scheme.
The scope and nature of the remedy ordered by the Florida Supreme Court jeopardizes the "legislative wish" to take 121*121 advantage of the safe harbor provided by 3 U. S. C. § 5. Bush v. Palm Beach County Canvassing Bd., ante, at 78 (per curiam) . December 12, 2000, is the last date for a final determination of the Florida electors that will satisfy § 5. Yet in the late afternoon of December 8th—four days before this 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 automatic recount provision. No one claims there was any fraud in the election. The Supreme Court of Florida ordered this additional recount under the provision of the Election Code giving the circuit judge the authority to provide relief that is "appropriate under such circumstances." Fla. Stat. Ann. § 102.168(8) (Supp. 2001).
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 cutoff 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 undervotes in these counties can be [counted] within the required time frame," 772 So. 2d, at 1262, 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 122*122 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 permit even such a shortened process.
As the dissent noted:
"In [the four days remaining], all questionable ballots 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 presidential electors outside the safe harbor provision, creating the very real possibility of disenfranchising those nearly six million voters who are able to correctly cast their ballots on election day." 772 So. 2d, at 1269 (opinion of Wells, C. J.) (footnote omitted).
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 1273 (Harding, J., dissenting, joined by Shaw, J.).
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 opinion, we would reverse.
123*123 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 questions arise about the meaning of state laws, including election laws, it is our settled practice to accept the opinions 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 Article 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 constitution of the State." Ibid.; cf. Smiley v. Holm, 285 U. S. 355, 367 (1932). The legislative power in Florida is subject to judicial review pursuant 124*124 to Article V of the Florida Constitution, and nothing in Article II of the Federal Constitution frees the state legislature from the constraints in the State Constitution that created it. Moreover, the Florida Legislature's own decision to employ a unitary code for all elections indicates that it intended 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 electors 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 judiciary 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.
Nor are petitioners correct in asserting that the failure of the Florida Supreme Court to specify in detail the precise manner in which the "intent of the voter," Fla. Stat. Ann. § 101.5614(5) (Supp. 2001), is to be determined rises to the level of a constitutional violation. We found such a violation 125*125 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 determines 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 every day by ordinary citizens in courtrooms across this country.
126*126 Admittedly, the use of differing substandards for determining voter intent in different counties employing similar voting systems may raise serious concerns. Those concerns are alleviated—if not eliminated—by the fact that a single impartial magistrate will ultimately adjudicate all objections arising from the recount process. Of course, as a general matter, "[t]he interpretation of constitutional principles must not be too literal. We must remember 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 accuracy—might run afoul of equal protection. So, too, might the similar decisions of the vast majority of state legislatures 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 constitutional stature. As the majority further acknowledges, Florida law holds that all ballots that reveal the intent of the voter constitute valid votes. Recognizing these principles, the majority nonetheless orders the termination of the contest proceeding before all such votes have been tabulated. Under their own reasoning, 127*127 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 effectively orders the disenfranchisement of an unknown number 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 110. 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 124. 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 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). 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 108.
Finally, neither in this case, nor in its earlier opinion in Palm Beach County Canvassing Bd. v. Harris, 772 So. 2d 1220 (2000), did the Florida Supreme Court make any substantive 128*128 change in Florida electoral law. Its decisions were rooted in long-established precedent and were consistent with the relevant statutory provisions, taken as a whole. It did what courts do—it decided the case before it in light of the legislature's intent to leave no legally cast vote uncounted. In so doing, it 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 contested 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 administer 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, 129*129 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.
Justice Souter, with whom Justice Breyer joins, and with whom Justice Stevens and Justice Ginsburg join as to all but Part III, dissenting.
The Court should not have reviewed either Bush v. Palm Beach County Canvassing Bd., ante, p. 70 (per curiam), or this case, and should not have stopped Florida's attempt to recount all undervote ballots, see ante, at 102, by issuing a stay of the Florida Supreme Court's orders during the period of this review, see Bush v. Gore, post, at 1046. 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 contest 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 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 130*130 due process guaranteed by the Fourteenth Amendment. None of these issues is difficult to describe or to resolve.
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 requires 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 anywhere, in the Congress.
The second matter here goes to the State Supreme Court's interpretation of certain terms in the state statute governing election "contests," Fla. Stat. Ann. § 102.168 (Supp. 2001); there is no question here about the state court's interpretation of the related provisions dealing with the antecedent process of "protesting" particular vote counts, § 102.166, which was involved in the previous case, Bush v. Palm Beach County Canvassing Bd. 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 the provisions made by the legislature, to which the National 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 uncertain meaning is enough to displace the legislative provision and violate Article II; statutes require interpretation, which does not without more affect the legislative character 131*131 of a statute within the meaning of the Constitution. Brief for Petitioner in Bush v. Palm Beach County Canvassing Bd., O. T. 2000, No. 00-836, p. 48, n. 22. 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 rewrote § 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. Ann. § 102.168(3)(c) (Supp. 2001). None of the state court's interpretations 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 alternatives. 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 rejection of which may affect the election. The State Supreme Court was therefore required to define it, and in doing 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 disregarded "if there is a clear indication of the intent of the voter as determined by the canvassing board." The court read that objective of looking to the voter's intent as indicating that the legislature probably meant "legal vote" to mean a vote recorded on a ballot indicating what the voter intended. Gore v. Harris, 772 132*132 So. 2d 1243, 1256-1257 (2000). It is perfectly true that the majority might have chosen a different reading. See, e. g., Brief for Respondent 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 constitutional violation in following the majority view; Article II is unconcerned with mere disagreements about interpretive merits.
2. The Florida court next interpreted "rejection" to determine what act in the counting process may be attacked in a contest. Again, the statute does not define the term. The court majority read the word to mean simply a failure to count. 772 So. 2d, at 1257. 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 "rejection" 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 1266 (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 understanding of the phrase "votes sufficient to change or place 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.[*] While the majority might have thought (as 133*133 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 interpretation 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. Ann. § 102.168(8) (Supp. 2001), 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 the Florida court's determinations in this case.
It is only on the third issue before us that there is a meritorious argument for relief, as this Court's per curiam 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 134*134 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' intentions; 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 disparity 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. 238-242 (Dec. 2-3, 2000) (testimony of Palm Beach County Canvassing Board Chairman Judge Charles Burton describing varying standards applied to imperfectly punched ballots in Palm Beach County during precertification manual recount); id., at 497-500 (similarly describing varying standards applied in Miami-Dade County); Tr. 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 account 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 135*135 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 standards potentially affected 170,000 votes, Gore v. Harris, 772 So. 2d, at 1272-1273, the number at issue is significantly smaller. The 170,000 figure apparently 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 opportunity to try to count all disputed ballots now.
I respectfully dissent.
Justice Ginsburg, with whom Justice Stevens joins, and with whom Justice Souter and Justice Breyer join as to Part I, dissenting.
The Chief Justice acknowledges that provisions of Florida's Election Code "may well admit of more than one interpretation." Ante, at 114 (concurring opinion). But instead of respecting the state high court's province to say what the State's Election Code means, The Chief Justice maintains that Florida's Supreme Court has veered so far from the ordinary practice of judicial review that what it did cannot 136*136 properly be called judging. My colleagues have offered a reasonable construction of Florida's law. Their construction coincides with the view of one of Florida's seven Supreme Court justices. Gore v. Harris, 772 So. 2d 1243, 1264-1270 (Fla. 2000) (Wells, C. J., dissenting); Palm Beach County Canvassing Bd. v. Harris, 772 So. 2d 1273, 1291-1292 (Fla. 2000) (on remand) (confirming, 6 to 1, the construction of Florida law advanced in Gore ). I might join The Chief Justice were it my commission to interpret Florida law. But disagreement with the Florida court's interpretation of its own State's law does not warrant the conclusion that the justices of that court have legislated. There is no cause here to believe that the members of Florida's high court have done less than "their mortal best to discharge their oath of office," Sumner v. Mata, 449 U. S. 539, 549 (1981), and no cause to upset their reasoned interpretation of Florida law.
This Court more than occasionally affirms statutory, and even constitutional, interpretations with which it disagrees. For example, when reviewing challenges to administrative agencies' interpretations of laws they implement, we defer to the agencies unless their interpretation violates "the unambiguously expressed intent of Congress." Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 843 (1984). We do so in the face of the declaration in Article I of the United States Constitution that "All legislative Powers herein granted shall be vested in a Congress of the United States." Surely the Constitution does not call upon us to pay more respect to a federal administrative agency's construction of federal law than to a state high court's interpretation of its own State's law. And not uncommonly, we let stand state-court interpretations of federal law with which we might disagree. Notably, in the habeas context, the Court adheres to the view that "there is `no intrinsic reason why the fact that a man is a federal judge 137*137 should make him more competent, or conscientious, or learned with respect to [federal law] than his neighbor in the state courthouse.' " Stone v. Powell, 428 U. S. 465, 494, n. 35 (1976) (quoting Bator, Finality in Criminal Law and Federal Habeas Corpus for State Prisoners, 76 Harv. L. Rev. 441, 509 (1963)); see O'Dell v. Netherland, 521 U. S. 151, 156 (1997) ("[T]he Teague doctrine validates reasonable, good-faith interpretations of existing precedents made by state courts even though they are shown to be contrary to later decisions.") (citing Butler v. McKellar, 494 U. S. 407, 414 (1990)); O'Connor, Trends in the Relationship Between the Federal and State Courts from the Perspective of a State Court Judge, 22 Wm. & Mary L. Rev. 801, 813 (1981) ("There is no reason to assume that state court judges cannot and will not provide a `hospitable forum' in litigating federal constitutional questions.").
No doubt there are cases in which the proper application of federal law may hinge on interpretations of state law. Unavoidably, this Court must sometimes examine state law in order to protect federal rights. But we have dealt with such cases ever mindful of the full measure of respect we owe to interpretations of state law by a State's highest court. In the Contract Clause case, General Motors Corp. v. Romein, 503 U. S. 181 (1992), for example, we said that although "ultimately we are bound to decide for ourselves whether a contract was made," the Court "accord[s] respectful consideration and great weight to the views of the State's highest court." Id., at 187 (citing Indiana ex rel. Anderson v. Brand, 303 U. S. 95, 100 (1938)). And in Central Union Telephone Co. v. Edwardsville, 269 U. S. 190 (1925), we upheld the Illinois Supreme Court's interpretation of a state waiver rule, even though that interpretation resulted in the forfeiture of federal constitutional rights. Refusing to supplant Illinois law with a federal definition of waiver, 138*138 we explained that the state court's declaration "should bind us unless so unfair or unreasonable in its application to those asserting a federal right as to obstruct it." Id., at 195.
In deferring to state courts on matters of state law, we appropriately recognize that this Court acts as an "`outside[r]' lacking the common exposure to local law which comes from sitting in the jurisdiction." Lehman Brothers v. Schein, 416 U. S. 386, 391 (1974). That recognition has sometimes prompted us to resolve doubts about the meaning of state law by certifying issues to a State's highest court, even when federal rights are at stake. Cf. Arizonans for Official English v. Arizona, 520 U. S. 43, 79 (1997) ("Warnings against premature adjudication of constitutional questions bear heightened attention when a federal court is asked to invalidate a State's law, for the federal tribunal risks friction-generating error when it endeavors to construe a novel state Act not yet reviewed by the State's highest 139*139 court."). Notwithstanding our authority to decide issues of state law underlying federal claims, we have used the certification device to afford state high courts an opportunity to inform us on matters of their own State's law because such restraint "helps build a cooperative judicial federalism." Lehman Brothers, 416 U. S., at 391.
Just last Term, in Fiore v. White, 528 U. S. 23 (1999), we took advantage of Pennsylvania's certification procedure. In that case, a state prisoner brought a federal habeas action claiming that the State had failed to prove an essential element of his charged offense in violation of the Due Process Clause. Id., at 25-26. Instead of resolving the state-law question on which the federal claim depended, we certified the question to the Pennsylvania Supreme Court for that court to "help determine the proper state-law predicate for our determination of the federal constitutional questions raised." Id., at 29; id., at 28 (asking the Pennsylvania Supreme Court whether its recent interpretation of the statute under which Fiore was convicted "was always the statute's meaning, even at the time of Fiore's trial"). The Chief Justice's willingness to reverse the Florida Supreme Court's interpretation of Florida law in this case is at least in tension with our reluctance in Fiore even to interpret Pennsylvania law before seeking instruction from the Pennsylvania Supreme Court. I would have thought the "cautious approach" we counsel when federal courts address matters of state law, Arizonans, 520 U. S., at 77, and our commitment to "build[ing] cooperative judicial federalism," Lehman Brothers, 416 U. S., at 391, demanded greater restraint.
Rarely has this Court rejected outright an interpretation of state law by a state high court. Fairfax's Devisee v. Hunter's Lessee, 7 Cranch 603 (1813), NAACP v. Alabama ex rel. Patterson, 357 U. S. 449 (1958), and Bouie v. City of Columbia, 378 U. S. 347 (1964), cited by The Chief Justice, 140*140 are three such rare instances. See ante, at 114-115, and n. 1. But those cases are embedded in historical contexts hardly comparable to the situation here. Fairfax's Devisee, which held that the Virginia Court of Appeals had misconstrued its own forfeiture laws to deprive a British subject of lands secured to him by federal treaties, occurred amidst vociferous States' rights attacks on the Marshall Court. G. Gunther & K. Sullivan, Constitutional Law 61-62 (13th ed. 1997). The Virginia court refused to obey this Court's Fairfax's Devisee mandate to enter judgment for the British subject's successor in interest. That refusal led to the Court's pathmarking decision in Martin v. Hunter's Lessee, 1 Wheat. 304 (1816). Patterson, a case decided three months after Cooper v. Aaron, 358 U. S. 1 (1958), in the face of Southern resistance to the civil rights movement, held that the Alabama Supreme Court had irregularly applied its own procedural rules to deny review of a contempt order against the NAACP arising from its refusal to disclose membership lists. We said that "our jurisdiction is not defeated if the nonfederal ground relied on by the state court is `without any fair or substantial support.' " 357 U. S., at 455 (quoting Ward v. Board of Commr's of Love Cty., 253 U. S. 17, 22 (1920)). Bouie, stemming from a lunch counter "sit-in" at the height of the civil rights movement, held that the South Carolina Supreme Court's construction of its trespass laws—criminalizing conduct not covered by the text of an otherwise clear statute—was "unforeseeable" and thus violated due process when applied retroactively to the petitioners. 378 U. S., at 350, 354.
The Chief Justice's casual citation of these cases might lead one to believe they are part of a larger collection of cases in which we said that the Constitution impelled us to train a skeptical eye on a state court's portrayal of state law. But one would be hard pressed, I think, to find additional cases that fit the mold. As Justice Breyer convincingly explains, see post, at 149-152 (dissenting opinion), this case 141*141 involves nothing close to the kind of recalcitrance by a state high court that warrants extraordinary action by this Court. The Florida Supreme Court concluded that counting every legal vote was the overriding concern of the Florida Legislature when it enacted the State's Election Code. The court surely should not be bracketed with state high courts of the Jim Crow South.
The Chief Justice says that Article II, by providing that state legislatures shall direct the manner of appointing electors, authorizes federal superintendence over the relationship between state courts and state legislatures, and licenses a departure from the usual deference we give to state-court interpretations of state law. Ante, at 115 (concurring opinion) ("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."). The Framers of our Constitution, however, understood that in a republican government, the judiciary would construe the legislature's enactments. See U. S. Const., Art. III; The Federalist No. 78 (A. Hamilton). In light of the constitutional guarantee to States of a "Republican Form of Government," U. S. Const., Art. IV, § 4, Article II can hardly be read to invite this Court to disrupt a State's republican regime. Yet The Chief Justice today would reach out to do just that. By holding that Article II requires our revision of a state court's construction of state laws in order to protect one organ of the State from another, The Chief Justice contradicts the basic principle that a State may organize itself as it sees fit. See, e. g., Gregory v. Ashcroft, 501 U. S. 452, 460 (1991) ("Through the structure of its government, and the character of those who exercise government authority, a State defines itself as a sovereign."); Highland Farms Dairy, Inc. v. Agnew, 300 U. S. 608, 612 (1937) ("How power shall be distributed by a state among its governmental organs is commonly, if not always, a question 142*142 for the state itself."). Article II does not call for the scrutiny undertaken by this Court.
The extraordinary setting of this case has obscured the ordinary principle that dictates its proper resolution: Federal courts defer to a state high court's interpretations of the State's own law. This principle reflects the core of federalism, on which all agree. "The Framers split the atom of sovereignty. It was the genius of their idea that our citizens would have two political capacities, one state and one federal, each protected from incursion by the other." Saenz v. Roe, 526 U. S. 489, 504, n. 17 (1999) (citing U. S. Term Limits, Inc. v. Thornton, 514 U. S. 779, 838 (1995) (Kennedy, J., concurring)). The Chief Justice's solicitude for the Florida Legislature comes at the expense of the more fundamental solicitude we owe to the legislature's sovereign. U. S. Const., Art. II, § 1, cl. 2 ("Each State shall appoint, in such Manner as the Legislature thereof may direct," the electors for President and Vice President (emphasis added)); ante, at 123-124 (Stevens, J., dissenting). Were the other Members of this Court as mindful as they generally are of our system of dual 143*143 sovereignty, they would affirm the judgment of the Florida Supreme Court.
I agree with Justice Stevens that petitioners have not presented a substantial equal protection claim. Ideally, perfection would be the appropriate standard for judging the recount. But we live in an imperfect world, one in which thousands of votes have not been counted. I cannot agree that the recount adopted by the Florida court, flawed as it may be, would yield a result any less fair or precise than the certification that preceded that recount. See, e. g., McDonald v. Board of Election Comm'rs of Chicago, 394 U. S. 802, 809 (1969) (even in the context of the right to vote, the State is permitted to reform "one step at a time") (citing Williamson v. Lee Optical of Okla., Inc., 348 U. S. 483, 489 (1955)).
Even if there were an equal protection violation, I would agree with Justice Stevens, Justice Souter, and Justice Breyer that the Court's concern about the December 12 date, ante, at 110-111, is misplaced. Time is short in part because of the Court's entry of a stay on December 9, several hours after an able circuit judge in Leon County had begun to superintend the recount process. More fundamentally, the Court's reluctance to let the recount go forward—despite its suggestion that "[t]he search for intent can be confined by specific rules designed to ensure uniform treatment," ante, at 106—ultimately turns on its own judgment about the practical realities of implementing a recount, not the judgment of those much closer to the process.
Equally important, as Justice Breyer explains, post, at 155 (dissenting opinion), the December 12 date for bringing Florida's electoral votes into 3 U. S. C. § 5's safe harbor lacks the significance the Court assigns it. Were that date to pass, Florida would still be entitled to deliver electoral votes Congress must count unless both Houses find that the votes "ha[d] not been . .. regularly given." 3 U. S. C. § 15. The statute identifies other significant dates. See, e. g., § 7 (specifying 144*144 December 18 as the date electors "shall meet and give their votes"); § 12 (specifying "the fourth Wednesday in December"—this year, December 27—as the date on which Congress, if it has not received a State's electoral votes, shall request the state secretary of state to send a certified return immediately). But none of these dates has ultimate significance in light of Congress' detailed provisions for determining, on "the sixth day of January," the validity of electoral votes. § 15.
The Court assumes that time will not permit "orderly judicial review of any disputed matters that might arise." Ante, at 110. But no one has doubted the good faith and diligence with which Florida election officials,attorneys for all sides of this controversy, and the courts of law have performed their duties. Notably, the Florida Supreme Court has produced two substantial opinions within 29 hours of oral argument. In sum, the Court's conclusion that a constitutionally adequate recount is impractical is a prophecy the Court's own judgment will not allow to be tested. Such an untested prophecy should not decide the Presidency of the United States.
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.
The political implications of this case for the country are momentous. But the federal legal questions presented, with one exception, are insubstantial.
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 undervotes, 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, petitioners 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 seem to invalidate any state provision for a manual recount 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 subsidiary 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 undercounted "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 remand, the Florida Supreme Court may have been reluctant 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 standards 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 146*146 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 should have counseled the adoption of a uniform standard 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.
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 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 MiamiDade Counties, whether or not previously recounted prior to the end of the protest period, and to do so in accordance with a single uniform standard.
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 of State (Secretary) to review and approve equipment needed to separate undervotes. 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 December 18, when the electors are scheduled to meet, is a matter for the state courts to determine. And whether, under Florida law, Florida 147*147 could or could not take further action is obviously a matter for Florida courts, not this Court, to decide. See ante, at 111 (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 126, and n. 4 (dissenting opinion), the ballots of voters in counties that use punchcard systems are more likely to be disqualified than those in counties 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 Votomatic punchcard 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 Supreme Court's recount order, which helps to redress this inequity, must be entirely prohibited based on a deficiency that could easily be remedied.
The remainder of petitioners' claims, which are the focus of The Chief Justice's concurrence, raise no significant federal questions. I cannot agree that The Chief Justice's unusual review of state law in this case, see ante, at 135-143 (Ginsburg, J., dissenting), is justified by reference either to Art. II, § 1, or to 3 U. S. C. § 5. Moreover, even were such 148*148 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 its conclusion that this case is one of the few in which we may lay that fundamental principle aside. Ante, at 112 (opinion of Rehnquist, C. J.). The concurrence's primary foundation for this conclusion rests on an appeal 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 manner 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 concurrence. Ante, at 123, and n. 1 (dissenting opinion).
The concurrence's treatment of § 5 as "inform[ing]" its interpretation of Article II, § 1, cl. 2, ante, at 113 (opinion of Rehnquist, C. J.), is no more convincing. The Chief Justice contends that our opinion in Bush v. Palm Beach County Canvassing Bd., ante, p. 70 (per curiam) (Bush I), in which we stated that "a legislative wish to take advantage of [§ 5] would counsel against" a construction of Florida law that Congress might deem to be a change in law, ante, at 78, 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 113. However, § 5 is part of the rules that govern Congress' recognition of slates of electors. Nowhere in Bush I did we 149*149 establish that this Court had the authority to enforce § 5. Nor did we suggest that the permissive "counsel against" could be transformed 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 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 115 (opinion of Rehnquist, C. J.). But what precisely is the distortion? Apparently, it has three elements. First, the Florida court, in its earlier opinion, changed the election 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," however, requires the concurrence to second-guess the way in which the state court resolved a plain conflict in the language of different statutes. Compare Fla. Stat. Ann. § 102.166 (Supp. 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 150*150 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 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 "impermissibl[e] distort[ion]" once one understands that there are two sides to the opinion's argument that the Florida Supreme Court "virtually eliminat[ed] the Secretary's discretion." Ante, at 115, 118 (Rehnquist, C. J., concurring). The Florida statute in question was amended in 1999 to provide 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. Ann. §§ 102.168(3), (3)(c) (Supp. 2001). 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 instructions provided to all registered voters." Brief for Respondent 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. Ann. § 101.5614(5) (Supp. 2001). Given 151*151 this statutory language, certain roughly analogous judicial precedent, e. g., Darby v. State ex rel. McCollough, 75 So. 411 (Fla. 1917) (per curiam), and somewhat similar determinations by courts throughout the Nation, see cases cited infra, at 152, 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, 772 So. 2d 1243, 1254 (2000). 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 determination is so unreasonable as to amount to a constitutionally "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 machines contained enough "legal votes" to place "the result[s]" 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 traditional 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 1260. 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 152*152 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 investigated, examined, or checked, . . . and to provide any relief appropriate." Fla. Stat. Ann. § 102.168(8) (Supp. 2001) (emphasis 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 language interpretation of a 1999 statutory change so misguided 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 similar 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. 455, 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 technical rules in reaching a conclusion as to the intent of the voter").
I repeat, where is the "impermissible" distortion?
Despite the reminder that this case involves "an election for the President of the United States," ante, at 112 (Rehnquist, C. J., concurring), no preeminent legal concern, or practical concern related to legal questions, required 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 vindicate a constitutional 153*153 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 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 interest. 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 fundamental 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 election.
The Constitution and federal statutes themselves make clear that restraint is appropriate. They set forth a roadmap 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 concerning 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 electoral votes. A federal statute, the Electoral Count Act, enacted 154*154 after the close 1876 Hayes-Tilden Presidential election, specifies that, after States have tried to resolve disputes (through "judicial" or other means), Congress is the body primarily authorized to resolve remaining disputes. 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. R. Rep. No. 1638, 49th Cong., 1st Sess., 2 (1886) (report 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 existence of this power is of absolute necessity to the preservation 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 relationships and the people in their sovereign capacity should be represented." 18 Cong. Rec. 30 (1886) (remarks of Rep. Caldwell).
"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.
155*155 The Act goes on to set out rules for the congressional determination of disputes about those votes. If, for example, 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, a State submits two slates 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 occurred 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 certified 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 political issue by this Court. Nor, for that matter, is there any reason to think that the Constitution's Framers would have reached a different conclusion. Madison, at least, believed that allowing the judiciary to choose the Presidential 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 accurately than does an unelected Court. And the people's will is what elections are about.
156*156 Moreover, Congress was fully aware of the danger that would arise should it ask judges, unarmed with appropriate legal standards, to resolve a hotly contested Presidential 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 commission composed of five Senators, five Representatives, and five Supreme Court Justices. Initially the Commission was to be evenly divided between Republicans and Democrats, with Justice David Davis, an Independent, to possess 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 of 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 authorities," an "issue of principle." The Least Dangerous Branch 185 (1962). Nonetheless, Bickel points out, the legal question upon which Justice 157*157 Bradley's decision turned was not very important in the contemporaneous political context. 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 electoral commission by five Justices, including Justice Bradley, 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." Id., 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 marked by a Civil War and the tragedy of segregation. It is a vitally 158*158 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!" D. 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 election process to a definitive conclusion, we have not adequately 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 as best we now can, by permitting the Florida recount to continue under uniform standards.
I respectfully dissent.
[*] Briefs of amici curiae urging reversal were filed for the State of Alabama by Bill Pryor, Attorney General, and Charles B. Campbell, Scott L. Rouse, and A. Vernon Barnett IV, Assistant Attorneys General; for the Florida House of Representatives et al. by Charles Fried, Einer Elhauge, and Roger J. Magnuson; for William H. Haynes et al. by Jay Alan Sekulow, Thomas P. Monaghan, Stuart J. Roth, Colby M. May, James M. Henderson, Sr., David A. Cortman, Griffin B. Bell, Paul D. Clement, and Jeffrey S. Bucholtz.
Briefs of amici curiae urging affirmance were filed for the Brennan Center for Justice at New York University School of Law by Burt Neuborne; and for Robert A. Butterworth, Attorney General of Florida, by Mr. Butterworth, pro se, Paul F. Hancock, Deputy Attorney General, Jason Vail, Assistant Attorney General, and Kimberly J. Tucker.
Briefs of amici curiae were filed for the National Bar Association by David Earl Honig; for Robert Harris et al. by Bruce J. Terris, Carolyn Smith Pravlik, Kathleen L. Millian, Sarah A. Adams, and Roger J. Bernstein; and for Michael F. Wasserman, pro se.
 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 constitutional 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).
 We vacated that decision and remanded that case; the Florida Supreme Court reissued the same judgment with a new opinion on December 11, 2000, Palm Beach County Canvassing Bd. v. Harris, 772 So. 2d 1273.
 Specifically, the Florida Supreme Court ordered the Circuit Court to include in the certified vote totals those votes identified for Vice President Gore in Palm Beach County and Miami-Dade County.
 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.
 "Wherever the term `legislature' is used in the Constitution it is necessary to consider the nature of the particular action in view." 285 U. S., at 366. 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. Thornton, 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.
 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 absentee 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), § 5/17-16 (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) (McKinney 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); 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 Laws § 12-20-7 (1995); Tenn. Code Ann. § 2-7—133(b) (1994); W. Va. Code § 3-6—5(g) (1999).
 Cf. Victor v. Nebraska, 511 U. S. 1, 5 (1994) ("The beyond a reasonable doubt standard is a requirement of due process, but the Constitution neither prohibits trial courts from defining reasonable doubt nor requires them to do so").
 The percentage of nonvotes in this election in counties using a punchcard system was 3.92%; in contrast, the rate of error under the more modern optical-scan systems was only 1.43%. Siegel v. LePore, 234 F. 3d 1163, 1202, 1213 (charts C and F) (CA11 2000). Put in other terms, for every 10,000 votes cast, punchcard systems result in 250 more nonvotes than optical-scan systems. A total of 3,718,305 votes were cast under punchcard systems, and 2,353,811 votes were cast under optical-scan systems. Ibid.
 Republican electors were certified by the Acting Governor on November 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 Governor 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.
 When, for example, it resolved the previously unanswered question whether the word "shall" in Fla. Stat. Ann. § 102.111 (Supp. 2001) 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 authoritative 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).
 "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).
[*] 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, 772 So. 2d 1243, 1272-1273 (2000) (Harding, J., dissenting). 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.
 See also Lucas v. South Carolina Coastal Council, 505 U. S. 1003, 1032, n. 18 (1992) (South Carolina could defend a regulatory taking "if an objectively reasonable application of relevant precedents [by its courts] would exclude . . . beneficial uses in the circumstances in which the land is presently found"); Bishop v. Wood, 426 U. S. 341, 344-345 (1976) (deciding whether North Carolina had created a property interest cognizable under the Due Process Clause by reference to state law as interpreted by the North Carolina Supreme Court). Similarly, in Gurley v. Rhoden, 421 U. S. 200 (1975), a gasoline retailer claimed that due process entitled him to deduct a state gasoline excise tax in computing the amount of his sales subject to a state sales tax, on the grounds that the legal incidence of the excise tax fell on his customers and that he acted merely as a collector of the tax. The Mississippi Supreme Court held that the legal incidence of the excise tax fell on petitioner. Observing that "a State's highest court is the final judicial arbiter of the meaning of state statutes," we said that "[w]hen a state court has made its own definitive determination as to the operating incidence, . . . [w]e give this finding great weight in determining the natural effect of a statute, and if it is consistent with the statute's reasonable interpretation it will be deemed conclusive." Id., at 208 (citing American Oil Co. v. Neill, 380 U. S. 451, 455-456 (1965)).
 Even in the rare case in which a State's "manner" of making and construing lawsmight implicatea structural constraint, Congress, not this Court, is likely the proper governmental entity to enforce that constraint. See U. S. Const., Amdt. 12; 3 U. S. C.§§ 1-15;cf.Ohio ex rel. Davis v. Hildebrant, 241 U. S. 565, 569 (1916) (treating as a nonjusticiable political question whether use of a referendum to override a congressional districting planenacted by the state legislature violates Art. I, § 4);Luther v. Borden, 7 How. 1, 42 (1849).
 "[B]ecause the Framers recognized that state power and identity were essential parts of the federal balance, see The Federalist No. 39, the Constitution is solicitous of the prerogatives of the States, even in an otherwise sovereign federal province. The Constitution . . . grants States certain powers over the times, places,and manner of federal elections (subject to congressional revision), Art. I, § 4, cl. 1 . . . , and allows States to appoint electors for the President, Art. II, § 1, cl. 2." U. S. Term Limits, Inc. v. Thornton, 514 U. S.779, 841-842 (1995) (Kennedy, J., concurring).
Print this transcript
Bush v. Gore TRJ Clip 1: First interruption
Bush v. Gore Clip 2: Second Interruption: Clip 2
Bush v. Gore TRJ Clip 3: Third Interruption
Bush v. Gore TRJ Clip 4: Fourth Interruption
Argument of Theodore B. Olson
Chief Justice Rehnquist: We'll hear argument now on number 00-949, George W. Bush and Richard Cheney, versus Albert Gore, et al. Before we begin the arguments, the Court wishes to commend all of the parties to this case on their exemplary briefing under very trying circumstances.
We greatly appreciate it.
Mr. Olson: Mr. Chief Justice, thank you, and may it please the Court:
Just one week ago, this Court vacated the Florida Supreme Court's November 21 revision of Florida's election code, which had changed statutory deadlines, severely limited the discretion of the State's chief election officer, changed the meaning of words such as shall and may into shall not and may not, and authorized extensive standardless and unequal manual ballot recounts in selected Florida counties.
Just four days later, without a single reference to this Court's December 4 ruling, the Florida Supreme Court issued a new, wholesale post-election revision of Florida's election law.
That decision not only changed Florida election law yet again, it also explicitly referred to, relied upon, and expanded its November 21 judgment that this Court had made into a nullity.
Justice Ginsburg: Mr. Olson...
Justice Kennedy: Can you begin by telling us our federal jurisdiction, where is the federal question here?
Mr. Olson: The federal question arises out of the fact that the Florida Supreme Court was violating Article II, section 1 of the Constitution, and it was conducting itself in violation of section 5 of Title III of federal law.
Justice Kennedy: On the first, it seems to me essential to the republican theory of government that the constitutions of the United States and the states are the basic charter, and to say that the legislature of the state is unmoored from its own constitution and it can't use its courts, and it can't use its executive agency, even you, your side, concedes it can use the state agencies, it seems to me a holding which has grave implications for our republican theory of government.
Mr. Olson: Justice Kennedy, the Constitution specifically vested the authority to determine the manner of the appointment of the electors in state legislatures.
Legislatures, of course can use the executive branch in the states, and it may use in its discretion the judicial branch.
Justice Kennedy: Then why didn't it do that here?
Mr. Olson: It did not do that here because it did not specify... it did use the executive branch.
In fact, it vested considerable authority in the Secretary of State, designating the Secretary of State as the chief elections official, and as we point out, the very first provision in the election code requires the Secretary of State to assure uniformity and consistency in the application and enforcement of the election law.
The Secretary of State as the executive branch is also given considerably other... considerable other responsibilities, when but... and to a certain extent, especially in connection with the contest phase of the election, certain authority was explicitly vested in the Circuit Court of the State of Florida, which is the trial court.
Justice O'Connor: Oh, but you think then there is no appellate review in the Supreme Court of what a circuit court does?
Mr. Olson: Certainly the legislature did not have to provide appellate review.
Justice O'Connor: Well, but it seemed apparently to just include selection of electors in the general election law provisions.
It assumed that they would all be lumped in together somehow.
They didn't break it out.
Mr. Olson: Well, there are... there is a breakout with respect to various aspects of Florida statute and Florida election law.
There is a specific grant of authority to the circuit courts.
There is no reference to an appellate jurisdiction.
It may not be the most powerful argument we bring to this Court.
Justice Kennedy: I think that's right.
Mr. Olson: Because notwithstanding, notwithstanding... well, the fact is that the Constitution may have been invoked.
Justice Kennedy: Well, this is serious business because it indicates how unmoored, untethered the legislature is from the constitution of its own state, and it makes every state law issue a federal question.
Can you use this theory and say that it creates some sort of presumption of validity that allows us to see whether this court or the executive has gone too far?
Is that what you're arguing?
Mr. Olson: No, I would say this with respect... it would have been a perfectly logical, and if you read the statutes, a perfectly logical, especially in the context of a presidential election, to stop this process at the circuit court, and not provide layers of appeal because given the time deadline, especially in the context of this election, the way it's played out, there is not time for an appellate court.
Justice O'Connor: I have the same problem Justice Kennedy does, apparently, which is, I would have thought you could say that Article II certainly creates a presumption that the scheme the legislature has set out will be followed even by judicial review in election matters, and that 3 U.S. code section 5 likewise suggests that it may inform the reading of statutes crafted by the legislature so as to avoid having the law changed after the election.
And I would have thought that that would be sufficient rather than to raise an appropriate federal question, rather than to say there's no judicial review here in Florida.
Mr. Olson: I think that I don't disagree with that except to the extent that I think that the argument we presented and amplified on in our briefs is a good argument, it's a solid argument.
It is consistent with the way the code is set up, and it's particularly consistent with the timetable that's available in a presidential election.
Justice Kennedy: Well, it's pretty close.
You can say it could be interpreted that way by the Florida Supreme Court, I suppose.
You think it must be?
Or is your point that even in close calls we have to revisit the Florida Supreme Court's opinion?
Mr. Olson: No, I think that it is particularly in this case where there's been two wholesale revisions, major restructuring of the Florida Election Code, we don't even get close to that question at all.
It would be unfortunate to assume that the legislature devolved this authority on its judiciary sub silentio.
There is no specific reference to it.
But in this case, as we have pointed out, especially the decision of last Friday, there was a major overhaul in almost every conceivable way.
Justice Stevens: Mr. Olson, as I understand your argument, you rely on Leser v. Garnett and Hawke v. Smith, and is it critical to your Article II argument that we read the word legislature as narrowly, I mean the power granted the legislature as similar to that granted in Article V of the Constitution, as those cases dealt with?
Mr. Olson: No, I don't think it's necessary.
Justice Stevens: So your reliance on... you really are not relying on those cases.
Mr. Olson: Well, I think those cases support the argument, but as we said...
Justice Stevens: But if you've got to choose one version of the word legislature or the other...
Mr. Olson: I think in a different context, it's not necessarily the case, and certainly it is true that legislatures can employ the legislative process that might include vetoes by a state chief executive, or a referendum, when the state deliberately chooses to choose a legislative method to articulate a code.
The point I think that's most important and most...
Justice Stevens: But is it the choice of the legislature or was it constitutionally limited to this provision?
I'm a little unclear on what your theory is.
Is it your theory, in other words, that they voluntarily did not permit appellate review of the lower courts in these election contests or that Article II prohibited them from allowing appeal to the appellate?
Mr. Olson: No, Article II... we do not contend that Article II would prohibit them from fulfilling that process.
Justice Stevens: Of course Article V would have, and under Leser against Garnett and those cases, but you...
Mr. Olson: In the context of this case we're saying that they can include the judicial branch when they wish to do so, but under no circumstances is it consistent with the concept of the plan in the Constitution for the state, sub silentio, the state legislature sub silentio to turn over to the judiciary the power to completely reverse, revise, and change the election code in all of the major respects...
Justice Ginsburg: Mr. Olson, with respect to the role of judicial review, you rely very much on the McPherson case, and two things strike me about that case.
One is, if you're right on your jurisdiction theory, then should not this Court have vacated instead of affirmed the decision of the Michigan Supreme Court in that case because the Michigan legislature didn't confer upon the Michigan Supreme Court in that case any special authority of judicial review?
Mr. Olson: That's entirely possible that that might be the case, Justice Ginsburg, but the entire text of the McPherson decision and its recitation of the legislative history or the history of legislation and acts by state legislatures to comply with it make it quite clear that the power is vested in the legislature itself.
Justice Ginsburg: But there was a decision by the court reviewing, which we affirmed.
Under your jurisdiction theory as I see it, there was no role for the Michigan Supreme Court to play because Article II, section 1 gives the authority exclusively to the legislature, and the legislature has not provided for judicial review especially for that measure.
Mr. Olson: I think the context of that case is different, and that it's entirely possible for the Court to have come to the conclusion it did in that case and we believe that case is compelling for the principle that we are arguing in this case, that there is no, the entire structure of what Florida did, its election code, in its effort to comply not only with Article II, but with Section 5 of Title 3, is such that it did not intend in any way to divest itself of the power to determine how the appointment of electors would be determined in a federal presidential election and most importantly, the resolution of cases and controversies, and disputes, with respect to the appointments...
Justice Ginsburg: Three times, at least as I counted in McPherson itself, it refers to what is done by the legislative power under state constitutions as they exist.
This is not the most clearly written opinion, and yet three times, they refer to the legislative power as constrained by the state's constitution.
Mr. Olson: And I think that that's important.
I agree with you, Justice Ginsburg.
It's not the most clearly written opinion.
But I think that in the context of that case, the relationship of the legislature to the Constitution in that case and the way that power was exercised, that ought to be reconciled with what we are urging the Court today, that a wholesale revision and abandonment of the legislative authority can't be turned over, especially sub silentio, by a legislature simply because there is a constitution.
There is a constitution in every state.
There is a judiciary in every state.
The judiciary performs certain functions in every state, and to go that length, one would assume that the judiciary in every state under that argument could overturn, rewrite, revise, and change the election law in presidential elections notwithstanding Article II, at will.
Now, this was a major, major revision that took place on Friday.
Justice Stevens: Mr. Olson, isn't that one of the issues in the case as to whether it was a major revision?
Your opponents disagree, and I know you rely very heavily on the dissenting opinion in the Florida Supreme Court, but which opinion do we normally look to for issues of state law?
Mr. Olson: Well, I think that the dissenting opinion and the two dissenting opinions are very informative.
We are relying on what the court did.
If one looks at, for example, the recount provisions, before this revision under Florida law, manual recount under the protest provisions were discretionary, completely discretionary, conducted by canvassing boards during the protest phase of the election, post-election period, pursuant to legislatively defined procedures as to who could be present, for seven days after the election with respect to all ballots in a county, that was mandatory and only available, as we heard last week, for tabulation error up until this election.
After the decision of December 8th in this context, those remand provisions, I mean those recount, manual recount provisions became mandatory instead of discretionary pursuant to judicial rather than executive supervsion during the contest phase rather than the protest phase, even though it's not even mentioned in the statute with respect to the contest phase, pursuant to ad hoc judicially established procedures rather than the procedures that are articulated quite carefully in the statute.
Justice Souter: Well, on ad hoc judicially created procedures, the point of subsection 8 of 168.
I mean, once we get into the contest phase, subsection 8 gives at least to the circuit court, leaving aside the question of appellate jurisdiction, about as broad a grant to fashion orders as I can imagine going into a statute.
Mr. Olson: Well, to read that, to read that provision and it's written quite broadly, but to read that, one has to read that in the context of the entire statutory framework.
If one reads it the way the Florida Supreme Court did, the entire process is tilted on its head.
Where there used to be the decision that was in the election officials, it now becomes in the court.
All of the limitations on the remand process that existed during the protest phase, where the standards should be lower because it's earlier in the process are thrown out the window.
The time tables are thrown out the window.
The process that exists are there and one has to...
Justice Souter: What's the timetable in 168?
Mr. Olson: There is no timetable.
Justice Souter: That's right.
There is no timetable there.
So that seems to undercut your timetable argument once you get into the contest phase from the protest phase.
Mr. Olson: But that's only if you untether 168 entirely from the statute and the steam by which the protest phase takes place over a period of seven to 10 days in the context of this election, and the contest phase occurs over the next four weeks.
Justice Souter: It may well be and I'll grant you for the sake of argument that there would be a sound interpretive theory that in effect would coordinate these two statutes, 166 and 168, in a way that the Florida Supreme Court has not done.
But that's a question of Florida Supreme Court statutory construction and unless you can convince us, it seems to me, that in construing 168, which is what we are concerned with now, and its coordination or lack of coordination with 166, the Florida Supreme Court has simply passed the bounds of legitimate statutory construction, then I don't see how we can find an Article II violation here.
Mr. Olson: Well, I am hoping to convince you that they passed far beyond the normal limits of statutory construction.
The changing of the meaning...
Justice Souter: You have convinced us certainly that there is a disagreement about how it should be construed, and that disagreement is articulated by the dissents in the most recent case.
But I don't quite see where you cross the line into saying that this has simply become a nonjudicial act.
It may or may not be good statutory construction, but I don't see it as a nonjudicial act.
Mr. Olson: It is, it is, we submit an utter revision of the timetables, the allocation.
Justice Souter: But Mr. Olson, we're back to the... there is no timetable in 166.
Mr. Olson: That's correct.
Justice Souter: And what your argument boils down to, I think, is that they have insufficiently considered 168, I'm sorry, that they have insufficiently considered 166 in construing 168, and you may be right, but you have no textual hook in 168 to say untethered timetables imply in effect a nonjudicial act.
Mr. Olson: We are not just saying timetables.
We are saying that it has wrenched it completely out of the election code which the legislature very carefully crafted to fit together and work in an interrelated fashion.
It isn't just the timetable.
The fact that there are timetables which are very important in a presidential election, we are today smack up against a very important deadline, and we are in the process where...
Justice Souter: Yes, you are.
But that is a deadline set by a safe harbor statute for the guidance of Congress and it's a deadline that has nothing to do with any text in 168.
Mr. Olson: Well, I believe that the Supreme Court of Florida certainly thought that it was construing, it certainly said so this time, that it was construing the applicability of Section 5 and it was expressing the hope that what it was doing was not risking or jeopardizing the conclusive effect...
Justice Souter: And it took that into consideration in fashioning its orders under subsection 8.
Mr. Olson: And we submit that it incorrectly interpreted and construed federal law in doing that because what they have inevitably done is provide a process whereby it is virtually impossible, if not completely impossible, and I think it is completely impossible, to have these issues resolved and the controversies resolved in time for that federal statutory deadline.
Furthermore, it is quite clear, we submit, that the process has changed.
Justice Souter: Well, if your concern was with impossibility, why didn't you let the process run instead of asking for a stay?
Mr. Olson: Well, because we said...
Justice Souter: We'd find out.
Mr. Olson: Because we argued, and I believe that there is a very firm basis for saying that that process already had violated Article II of the Constitution.
It was also already throwing in jeopardy compliance with Section 5 of Title 3 because the laws had been changed in a number of different respects and we have recited them.
The timetables are important.
Justice Kennedy: Oh, and I thought your point was that the process is being conducted in violation of the Equal Protection Clause and it is standardless.
Mr. Olson: And the Due Process Clause, and what we know is now the new system that was set forth and articulated last...
Justice Breyer: In respect to that...
Mr. Olson: Pardon me?
Justice Breyer: In respect to that, if it were to start up again, if it were totally hypothetically, and you were counting just undercounts, I understand that you think that the system that's set up now is very unfair because it's different standards in different places.
What in your opinion would be a fair standard, on the assumption that it starts up missing the 12th deadline but before the 18th?
Mr. Olson: Well, one fair standard, and I don't know the complete answer to that, is that there would be a uniform way of evaluating the manner in which... there was Palm Beach, for example...
Justice Breyer: All right, a uniform way of evaluating.
What would the standard be, because this is one of your main arguments...
Mr. Olson: Well, the standard...
Justice Breyer: You say the intent of the voter is not good enough.
You want substandards.
Mr. Olson: We want...
Justice Breyer: And what in your opinion would be the most commonly used in the 33 states or whatever, or in your opinion, the fairest uniform substandard?
Mr. Olson: Well, certainly at minimum, Justice Breyer, the penetration of the ballot card would be required.
Now, that's why I mentioned the Palm Beach standard that was articulated in writing and provided along with the ballot instructions to people voting, that the chad ought to be punctured.
Justice Breyer: You're looking at, then, basically Indiana.
Is Indiana, in your opinion or pre... or 1990 Palm Beach, are either of those fair, or what else?
Mr. Olson: It's certainly a starting point, and the...
Justice O'Connor: Well, would the starting point be what the Secretary of State decreed for uniformity?
Is that the starting point...
Mr. Olson: That is correct.
Justice O'Connor: Under the Florida legislative scheme?
Mr. Olson: I would agree with that, Justice O'Connor.
Justice O'Connor: And what standard did the Secretary of State set?
Mr. Olson: She had not set one, and that's one of the objections that we had with respect to the process that... the selective process that existed and that we discussed in conjunction with the December... the November 21st position.
Not only was there not a standard, but there was a change two or three times during the course of this process with respect to the standard that I was just discussing.
Justice Kennedy: I understand that she has the expertise and let's assume that under Florida state law she's the one with the presumptive competence to set the standard.
Is there a place in the Florida scheme for her to do this in the contest period?
Mr. Olson: I don't think there is.
There is no limitation on when she can answer advisory opinions.
Justice Kennedy: Even in the contest period?
Mr. Olson: I don't... I think that that's correct.
Now, whether or not if there was a change as a result of that, of the process, whether there would be problems with respect to section 5 I haven't thought about, but...
Justice Kennedy: No, if there's...
Justice Souter: If this were remanded...
Justice Kennedy: Go ahead.
Justice Souter: If this were remanded to the Leon County Circuit Court and the judge of that court addressed the Secretary of State, who arguably either is or could be made a party, and said please tell us what the standard ought to be, we will be advised by your opinion, that would be feasible, wouldn't it?
Mr. Olson: I think it would be feasible.
Now, counsel for the Secretary of State will be up in a moment, immediately after me.
As I understand, however, the election code, she would have the power to respond to that inquiry.
In fact, under the very first, as I mentioned, the very first section of the election code, sub 1, she is not only the chief election officer, but has 5 responsibility...
Justice Breyer: But I would still like to get your view as to what would be the fair standard.
Mr. Olson: Well, certainly one that would... I don't... I haven't crafted it entirely out.
That is the job for a legislature.
Justice Breyer: I would still like to get your opinion insofar as you could give it.
Mr. Olson: I think part of that standard is it would have to be applied uniformly.
It would have to be... I would think a reasonable standard is, would have to be at minimum a penetration of the chad in the ballot, because indentations are no standards at all.
There are other procedural standards in the...
Justice Stevens: Mr. Olson, was the Palm Beach standard that you referred in your brief applied statewide and uniformly?
You refer to the Palm Beach standard having changed.
Was the Palm Beach standard ever applied on a statewide basis?
Mr. Olson: I believe it was not, Justice Stevens.
Justice Stevens: And can we possibly infer from the failure of the Secretary of State to promulgate a statewide standard that she might have inferred that the intent of the voter is an adequate standard?
Mr. Olson: No, I don't think it's a fair inference either way.
Remember in response to the question from I think it was Justice Scalia the last time we were here, this is the first time we've had a manual recount for anything other than arithmetic tabulation error.
This is something that is unprecedented in the State of Florida.
That's another change that took place.
Justice Ginsburg: Mr. Olson, you have said the intent of the voters simply won't do, it's too vague, it's too subjective, but at least, at least those words, intent of the voter, come from the legislature.
Wouldn't anything added to that be... wouldn't you be objecting much more fiercely than you are now if something were added to the words that the all powerful legislature put in the statute?
Mr. Olson: Well, I think we have to distinguish between whether we're talking about a prospective uniform standard as opposed to something that changes the process in the middle of the counting and evaluating of disputes.
But it certainly would...
Justice Ginsburg: But if we're talking about the contest period, and the statute, as Justice Souter pointed out, speaks with amazing breadth.
It says that... this is the text...
"shall fashion any order he or she deems necessary to prevent or correct any wrong and to provide any relief appropriate under the circumstances. "
I couldn't imagine a greater conferral of authority by the legislature to the circuit judge.
Mr. Olson: But we submit in the context of the entire election code itself.
Now, the intent of the voter standard, the one that's been cited and relied upon by our opponents most, is a provision that's contained in the provision of the election code that deals with damaged or spoiled ballots.
Justice Souter: Okay, but we have... there's no question that the closest we can come now under Florida law is an intent of the voter standard.
Is it your position that if any official, judicial or executive, at this point were to purport to lay down a statewide standard which went to a lower level, a more specific level than intent of the voter, and said, for example, count dimpled chads or don't count dimpled chads.
In your judgment, would that be a violation of Article II?
Mr. Olson: I don't think it would be a violation of Article II provided that... I mean, if the first part of your question...
Justice Souter: All right, so...
Mr. Olson: If we went from the standard that existed before, the dimpled chads, that that had not been a standard anywhere in Florida, if that change was made, we would strongly urge that that would be a violation of Article II.
Justice Scalia: Mr. Olson...
Mr. Olson: It would be a complete change.
Justice Scalia: It is also part of your case, is it not, that insofar as that language just quoted is concerned, the power of the circuit judge to prevent or correct any alleged wrong, it's part of your submission, I think, that there is no wrong when a machine does not count those ballots that it's not supposed to count?
Mr. Olson: That's absolutely correct, Justice Scalia.
Justice Scalia: The voters are instructed to detach the chads entirely, and the machine, as predicted, does not count those chads where those instructions are not followed, there isn't any wrong.
Mr. Olson: That's correct, they've been euphemistically... this has been euphemistically referred to as legal votes that haven't been counted.
These are ballots where the system created by Florida, both with respect to the initial tabulation and the preferred system for the recount, the automatic recount in close elections, is to submit those ballots to the same mechanical objective scrutiny that the initial count was done, and those were not counted either because there were votes for more than one candidate, which would make them overvotes, I guess they're calling them, or that they read as no vote, which many people do, many people do not vote in the presidential election even though they're voting for other offices.
Justice Souter: But as to the undervotes, and as to the undervotes in which there is arguably some expression of intent on the ballot that the machine didn't pick up, the majority of the Florida Supreme Court says you're wrong.
They interpreted the statute otherwise.
Are you saying here that their interpretation was so far unreasonable in defining legal vote as not to be a judicial act entitled, in effect, to the presumption of reasonable interpretation under Article II?
Mr. Olson: Yes, that is our contention, and that has to be done.
That contention is based upon everything else in the Florida statute, including the contest provisions.
The manual recount provisions...
Justice Souter: What is it in the contest provision that supports the theory that that was a rogue, illegal judicial act?
Mr. Olson: Because there is no reference to them, even though that process is referred to...
Justice Souter: There's no definition.
There's no definition.
Doesn't the court have to come up with a definition of legal votes?
Mr. Olson: In the context, in the context of the statute as a whole, manual recounts are treated quite extensively as a last resort for tabulation error at the discretion of canvassing officials.
Justice Souter: At the protest stage?
Mr. Olson: That's correct.
Justice Kennedy: Mr. Olson...
Mr. Olson: We submit... and I would like to reserve the balance of my time.
Justice Stevens: Mr. Olson, is it critical to your position that the Florida Supreme Court erred in its resolution of the shall/ may controversy in its first opinion?
Mr. Olson: I'm sorry, I missed...
Justice Stevens: Is it critical to your position, because you're tying the two cases together, that the Florida Supreme Court made that kind of error in its resolution of the conflict between shall and may in the disparate statute?
Mr. Olson: I don't think it's critical.
What we're saying is that the court expanded upon its previous decision that was vacated in this case, it used the time period that it opened up to do this manual recount to then build upon in the December 8th opinion.
Argument of Joseph P. Klock Jr.
Chief Justice Rehnquist: Very well, Mr. Olson.
Mr. Klock, we'll hear from you.
Mr. Klock: Mr. Chief Justice, and may it please the Court:
If I could start by addressing a question of Justice Souter with respect to the standards, 166 does have time limits.
The time limit of 166 is set by the certification, which is seven days after the election.
The time of the contest, there are time limits there as well.
You have ten days to file a complaint, ten days to file an answer, and in the context of a presidential election, you then of course have the December 12 deadline.
So therefore, there are time...
Justice Souter: Which is federal, not state, and occurs in the safe harbor statute, or as a result of the safe harbor statute.
Rebuttal of Theodore B. Olson
Mr. Olson: Yes, Your Honor, but this Court in its opinion that it handed down in the initial Harris case pointed out that it was clear that there was a desire in which by the legislature to preserve the safe harbor.
Justice Souter: Oh, there is no...
Justice Scalia: I thought the Florida court accepted that, too, in its current opinion.
Rebuttal of Joseph P. Klock Jr.
Mr. Klock: They did say that exactly, Your Honor.
Chief Justice Rehnquist: Mr. Klock, will you... you refer to the first Harris case.
We think of it as the first Bush v. Gore case.
You are talking about the same...
Mr. Klock: Yes, Your Honor.
Justice Souter: Mr. Klock, will you address Justice Breyer's question of a moment ago, if there were to be a uniform standard laid down, I suppose at this point by the Leon County Circuit Court or in any other valid way in your judgment, what should the substantive standard be?
Mr. Klock: I'll try to answer that question.
You would start, I would believe, with the requirements that the voter has when they go into the booth.
That would be a standard to start with.
The voter is told in the polling place and then when they walk into the booth that what you are supposed to do with respect to the punch cards is put the ballot in, punch your selections, take the ballot out, and make sure there are no hanging pieces of paper attached to it.
The whole issue of what constitutes a legal vote which the Democrats make much ado about presumes that it's a legal vote no matter what you do with the card.
And presumably, you could take the card out of the polling place and not stick it in the box and they would consider that to be a legal vote.
The fact is that a legal vote at the very basics has to at least be following the instructions that you are given and placing the ballot in the box.
Justice Breyer: No, we're asking, I think...
Mr. Klock: No.
Justice Breyer: Not what the Florida election law is at this point in your opinion, but rather if under the Equal Protection Clause, and I'm drawing on your experience as a person familiar with elections across the country.
You have looked into this.
Mr. Klock: Yes, sir.
Justice Breyer: What would be a fair subsidiary standard applied uniformly, were it to be applied uniformly across all the counties of Florida, including Broward, a fair uniform standard for undervotes.
Remember, Indiana has a statute, Michigan has a statute, 33 states have a statute where they just say intent of voter, but in your opinion because of the hanging chad, etcetera, etcetera, what is a fair, not necessarily Florida law, but a fair uniform standard?
Mr. Klock: Without being disrespectful, Your Honor, I think you have answered the question in terms of phrasing the question.
There are any number of statutory schemes that you could select from if you were a legislature, but as a court, I don't think that the Supreme Court of Florida respectfully, or any other court can sit down and write the standards that are going to be applied.
If you are a legislature...
Justice Breyer: But in your opinion, if you were looking for a basically fair standard, to take one out of a hat, Indiana, or Palm Beach 1990, in your opinion would be a basically fair one?
Mr. Klock: If I were to take one out of a hat, Your Honor, if I was a legislature, what I would do is I would hold that you have to punch the chad through on a ballot.
In those situations where you have a ballot where there are only indentations in every race, you might then come up with a different standard, but the only problem that we have here is created by people who did not follow instructions.
Justice Breyer: Okay.
Can I ask you a different question on Florida law?
Mr. Klock: Yes, sir.
Justice Breyer: And the question on Florida law is simply this, what the statute is.
I take it the contest statute lists grounds for contesting, one of those grounds is rejecting a sufficient number of legal votes sufficient to place the election in doubt, and then the circuit judge is given the power to investigate that allegation, just to look into it.
Mr. Klock: Yes.
There were no...
Justice Breyer: So why would it be illegal under Florida law to have a recount just to investigate whether this allegation is or is not so?
Mr. Klock: The Justice's question assumes that they are legal votes.
Justice Breyer: There might be some in there that are legal under anybody's standard.
Mr. Klock: Your Honor, if they are not properly, if the ballot is not properly executed, it's not a legal vote.
The only case in Florida that even touches upon this in terms of a machine ballot is the Hogan case from the Fourth District Court of Appeal.
In the Fourth District Court of Appeal, that candidate lost by three votes, and he went during the protest phase to the canvassing board and asked for a manual recount to be done and they exercised their discretion and said no.
And in that case, there is a discussion.
He raised the argument that there were ballots in there that had hanging chads and this that and the other thing.
They would hear none of it and when it went up on appeal, it was affirmed.
So the fact of the matter is that the only case that we have that deals with this handles it in that fashion, and I would respectfully suggest that a ballot that is not properly punched is not a legal ballot.
And I think also, sir, if you go through an analysis of the Vice President's arguments in supporting what the Supreme Court does, there is sort of an omelet that is created by going and picking through different statutes.
For instance, the clear intent standard comes from a statute that deals with a damaged ballot where you have to create, to put through the machine, a substitute ballot, and there are very clear directions as to what to do to preserve the integrity of the ballot.
And the Beckstrom case, which you will no doubt hear much about as the argument proceeds, dealt with that kind of situation.
There was a manual recount there; the court did not pass on the propriety of it.
The issue was if the election officials took ballots and marked over the ballots instead of creating a separate substitute ballot, they took that ballot and marked it over so it could go through an optical scanner, which the court found to be gross negligence whether they would discount the votes.
That was the issue that was present there.
So I think if you look through Florida law it is relatively clear that there was no basis whatsoever to be able to find...
Justice Stevens: Let me just ask this question.
If you did have a situation, I know your position is different, where there were some uncounted ballots due to a machine malfunction, for example, would it not make sense to assume that the standard used for damaged ballots would be the same standard you use in that situation?
Mr. Klock: I don't think so, sir.
Justice Stevens: What standard would you use in the situation I propose, then?
Mr. Klock: Well, Justice Brennan, the difficulty is that under... I'm sorry.
That's why they tell you not to do that.
The standard that is in 166 is in, is dealing with the protest phase, and it was brought about in 1988.
Justice Stevens: I understand, but my question is if you don't use that standard, what standard would you use for my hypothetical?
Mr. Klock: The legislature would have to create one, sir.
I don't know what standard...
Justice Souter: You are saying that they can't interpret a statute in which there is no explicit definition.
Mr. Klock: What I'm saying is...
Justice Souter: They have to throw their hands up?
Mr. Klock: No.
Justice Breyer, what I'm saying is that...
Justice Souter: I'm Justice Souter... you'd better cut that out.
Mr. Klock: I will now give up.
What I'm saying, sir, is this.
That you cannot be in a situation of using the word interpret to explain anything that a court does.
The word interpret cannot carry that much baggage.
Justice Souter: But you go to the opposite extreme and say, it seems to me, that they cannot look, as Justice Stevens suggested, to a statute which deals with, and certainly a closely analogous subject at a near stage, and it seems to me that you in effect go to the opposite extreme that you are excoriating the Florida Supreme Court for and say they can't interpret at all.
Mr. Klock: I think what the Florida Supreme Court should do in that instance is note the very tight restrictions that exist under the protest phase.
They require that you find voter intent with respect to a damaged ballot.
They also vested in the canvassing board, and the canvassing board is composed of a certain, a defined group of officials, a county judge, the election supervisor, the chairman of the county commission, it is very limited.
Justice Souter: But that means the court apparently cannot define legal vote.
Mr. Klock: That's correct.
Justice Scalia: Mr. Klock... I'm Scalia.
Mr. Klock: Yes, sir.
I remember that.
It will be hard to forget.
Justice Scalia: Correct me if I'm wrong, but I had thought that although you don't take into account improperly marked ballots for purposes of determining whether there will be a manual recount, I had thought that when there is a manual recount for some other reason, and you come across ballots of this sort that you can count them, that for that purpose you can decide oh, look at, there is a hanging chad.
The machine didn't count it.
It's clear what the intent of the voter are.
We'll count it.
Is that not correct?
Mr. Klock: Yes.
Justice Scalia, that is correct.
If you have a situation...
Justice Stevens: It's correct if you use the intent of the voter standard in that situation?
Mr. Klock: Pardon me, sir?
Justice Stevens: It's correct that you use the intent of the voter situation, standard in that situation?
Justice Breyer: That's what I understand the answer to be.
Mr. Klock: It is correct that that statute provides that.
That I think that that statute, there could be problems under it, but that statute was designed for a very limited situation where there was a problem with the mechanism of voting.
It was not designed to handle voter error and that is absolutely clear because otherwise, Your Honor, what would occur is the following.
That in every election that have you that was close, you would have an automatic recount and then irrespective of what the canvassing board does, just load all the ballots together and put them on a truck and send them to Tallahassee because if there is no standard whatsoever and in any election contest that you are unhappy with the election, you can send the ballots to Tallahassee, then have you a problem that is created that would not exist...
Argument of David Boies
Chief Justice Rehnquist: Thank you, Mr. Klock.
Mr. Boies, we'll hear from you.
Mr. Boies: Thank you, Mr. Chief Justice, may it please the court.
Let me begin by addressing what happened in the Beckstrom case that Mr. Klock refers to.
Justice Kennedy: Could we begin with jurisdiction, first?
Mr. Boies: Yes.
Justice Kennedy: The Supreme Court of Florida said that it took, that it was cognizant, and the legislature was cognizant of 3 U.S.C. Section 5.
And for convenience sake, let's call that new law.
Justice Breyer: That's not exactly the...
Justice Kennedy: When the Supreme Court used that word, I assume it used it in a legal sense.
Cognizance means to take jurisdiction of, to take authoritative notice.
Why doesn't that constitute an acceptance by the Supreme Court of the proposition that 3 USC section 5 must be interpreted in this case?
Mr. Boies: I think, Your Honor, and obviously this Court and the Florida Supreme Court is the best interpreter of that opinion, but I think a reasonable interpretation of that opinion is to say that what the Florida Supreme Court meant by cognizant is that it was taking into account the desire to get the election over in time so that everyone would have the advantage of the safe harbor.
I think that goes throughout the opinion.
Justice Kennedy: Well, the language used in 3 USC section 5 is garden variety language so far as the courts are concerned.
We can determine whether or not there is a new law or an old law.
That's completely susceptible of judicial interpretation, is it not?
Mr. Boies: Yes, I think it is, Your Honor.
Justice Scalia: All right.
Justice Kennedy: And it seems to me that if the Florida court, and presumably the Florida legislature have acted with reference to 3 USC section 5 that it presents now a federal question for us to determine whether or not there is or is not a new law by reason of the various Florida supreme... two Florida Supreme Court decisions.
Mr. Boies: Except, Your Honor, what the Florida Supreme Court did I think in its opinion is to say that in terms of looking at how to remedy the situation, it needed to be cognizant of the fact that there was this federal deadline out there that was going to affect Florida's electors if that deadline was not met.
Justice Kennedy: Well, of course the deadline is meaningless if there's a new law involved.
That's part of the equation, too.
Mr. Boies: Yes, but what I would say is that whether or not there is a new law, that is whether there's a change in the enactment in the language of the statute or the constitution, is something that has to be decided in the initial instance by the Florida Supreme Court interpreting Florida law.
Chief Justice Rehnquist: There really... Mr. Boies, there are really two parts to that sentence of section 5 we're talking about.
One is the law in effect at the time and the other is finally determined six days before the date for choosing the electors.
Do you think the Florida court meant to acknowledge... it seems to me since it's cited generally, they must have acknowledged both of those provisions.
Mr. Boies: I don't know exactly what was in the Florida Supreme Court's mind, but I think that in general what the Florida Supreme Court made quite clear is that the thing that was constraining it was the desire to fit its remedy within the safe harbor provision.
Chief Justice Rehnquist: So that's the finally determined portion of section 5?
Mr. Boies: Yes, Your Honor, yes, I think that's right.
And I think it does not reflect a desire to change the law or in any way affect what the substantive law is.
What the court is saying is...
Justice Kennedy: Let me ask, could the legislature of the State of Florida, after this election, have enacted a statute to change the contest period by truncating it by 19 days?
Mr. Boies: You mean by shortening it?
Justice Kennedy: Without contravening the section which says that there should be no new law for the safe harbor?
Could the Florida Supreme Court have done what the... could the Florida legislature have done what the supreme court did?
Mr. Boies: I think that it would be unusual.
I haven't really thought about that question.
I think they probably could not...
Justice Kennedy: Consistently, because that would be a new law under section 5, wouldn't it?
Mr. Boies: Yes, because it would be a legislative enactment as opposed to a judicial interpretation of an existing law.
Justice Kennedy: And in fact it would be a new law under our pre-clearance jurisprudence, wouldn't it?
Mr. Boies: I think not, Your Honor, because if you go back to the State against Chappell in 1988, where the Florida Supreme Court faced the very question of whether or not that seven-day period was an iron curtain that came down, the Florida Supreme Court said it was not.
The Florida Supreme Court said that you had to look as to whether there was substantial compliance.
In that case three days was found to be substantial compliance.
That was a situation in which there was telephone notice, which was not adequate for certification.
That was then followed up...
Justice Kennedy: But if we assume the legislature would run contrary to the new law prohibition in the statute, wouldn't the Supreme Court do it if it does exactly the same thing?
Mr. Boies: Except what I'm saying, Your Honor, is that it wasn't doing exactly the same thing because it wasn't passing a new law.
It was interpreting the existing law.
If the legislature had said, for example the legislature...
Justice Kennedy: I'm not sure why... if the legislature does it it's a new law and when the supreme court does it, it isn't.
Both would have to require... you have to pre-clear judicial rulings and see whether they make new laws, don't you?
Mr. Boies: What I'm saying, Your Honor, is that if the supreme court had rewritten the law the way you hypothesized the legislature rewrote the law, it might very well be a difference.
What I'm saying is that the Florida Supreme Court did not rewrite the law in the way that you hypothesized.
What the Florida Supreme Court was confronted with was a statute, and that statute said that... and it was the later passed statute, we get back into the may and the shall.
The may statute was the later passed statute, and so what the Florida Supreme Court said is we have to look at what is the criteria by which you decide whether you may ignore and will ignore these returns, and what the Florida Supreme Court said, we're going to interpret that exactly the way we've interpreted it for 25 years, and 12 years before the Florida Supreme Court made this decision, it had made the State against Chappell decision in which it had approached it from exactly the same policy grounds.
Justice Scalia: Well, it was quite a different... I mean, there, indeed, telephone notification had been given within the deadline, and the actual written material was not submitted until a few days after.
I think that's quite a bit different from extending the period generally and for all submissions for, you know... but if I could... I'm not sure that you and Justice Kennedy are disagreeing on very much.
It seems to me you acknowledge that if the Florida Supreme Court's interpretation of this law were not a reasonable interpretation, just not one that would pass normal judicial muster, then it would be just like the legislature writing a new law, but your contention here is that this is a reasonable interpretation of Florida law.
Mr. Boies: I think the way I would put it, Your Honor, is that if you conclude that the Florida Supreme Court's interpretation of Florida law is either a sham or it is so misguided that it is simply untenable in any sense...
Justice Kennedy: Right.
Mr. Boies: I think at that point then you can conclude that what it has done is it has changed the law, but I think the standard is the standard this Court has generally applied in giving deference to state supreme court decisions.
Justice O'Connor: But is it in light of Article II?
I'm not so sure.
I mean, I would have thought that that bears on the standard, frankly, when it contemplates that it is plenary power in the legislature.
Does that not mean that a court has to, in interpreting a legislative act, give special deference to the legislature's choices insofar as a presidential election is concerned?
I would think that is a tenable view anyway, and especially in light also of the concerns about section 5.
Mr. Boies: I think, Your Honor, that if the Florida Supreme Court in interpreting the Florida law, I think the Court needs to take into account the fact that the legislature does have this plenary power.
I think when the Florida Supreme Court does that, if it does so within the normal ambit of judicial interpretation, that is a subject for Florida's Supreme Court to take.
Justice O'Connor: You are responding as though there were no special burden to show some deference to legislative choices.
In this one context, not when courts review laws generally for general elections, but in the context of selection of presidential electors, isn't there a big red flag up there, watch out?
Mr. Boies: I think there is in a sense, Your Honor, and I think the Florida Supreme Court was grappling with that.
Justice O'Connor: And you think it did it properly?
Mr. Boies: I think it did do it properly.
Justice O'Connor: That's, I think, a concern that we have, and I did not find really a response by the Florida Supreme Court to this Court's remand in the case a week ago.
It just seemed to kind of bypass it and assume that all those changes and deadlines were just fine and they would go ahead and adhere to them, and I found that troublesome.
Mr. Boies: Your Honor, if I could, one of the things that was argued from the beginning by Governor Bush's counsel and accepted by the Florida Supreme Court was that the protest statute and the contest statute were very separate procedures.
There was a time limit in the protest contest prior to certification, but there is no time limit in the contest statute process, which is what we are in now, and I think that the Florida Supreme Court was focusing on this contest period, which is what is really before, was before them and is before you, and in the contest...
Justice O'Connor: But I thought, and maybe I'm mistaken, but I thought it directed that certain votes that had been tabulated after the expiration of the original certification date were to be included now without reference to the point at all that their opinion had been vacated.
I just didn't know how that worked.
Mr. Boies: Well, there are three different groups of votes, okay?
And with respect... Broward, Palm Beach, and Miami-Dade.
With respect to Miami-Dade and Palm Beach, there was a trial.
There was a contest trial.
It is the appeal from that trial that is before this Court.
And the petitioners don't really refer to what's in the trial record but in that trial record, there was undisputed evidence that the votes that were counted there were valid legal votes.
Now, whether those votes were counted as part of the certification process or not...
Justice Kennedy: This was a...
Mr. Boies: Once you know they are valid votes...
Chief Justice Rehnquist: This was a trial, Mr. Boies, in the circuit court of Miami-Dade?
Mr. Boies: Yes.
In the Circuit Court of Leon County.
Because it's a statewide election, the contest procedure takes you to Leon County, regardless of where the votes are cast.
But what the, what the, what the court found there, and there was undisputed evidence, and Mr. Richard, who was Governor Bush's counsel here, conceded that the Palm Beach Board had applied the appropriate standard in identifying votes, the so-called 215 additional net votes for Vice President Gore and Senator Lieberman.
What you had there was undisputed evidence, it was found as a matter of fact, and the Supreme Court reviewing that trial said you've had these votes identified by Miami-Dade, 168 net votes, by Palm Beach, 215 net votes, and those votes need to be included.
Justice Breyer: It not only said...
Mr. Boies: It's a part of the certification process.
Justice Scalia: It not only said that.
It said that those votes have to be certified.
Mr. Boies: Yes, Your Honor.
Justice Scalia: It said that those votes had to be certified, which certainly contravenes our vacating of their prior order.
Mr. Boies: I think not, Your Honor, because when you look at the contest statute, it is a contest of the certification.
That is, the process is the results are certified and then what happens is you contest whether that certification is right.
Justice Scalia: I understand, but this, but what the Florida Supreme Court said is that there shall be added to the certification these additional numbers.
Mr. Boies: But that's true in any contest.
Every single contest...
Justice Scalia: It's not added to the certification.
Mr. Boies: Yes, of course it is, Your Honor.
Justice Scalia: You may do review of the ballots and add more numbers, but as I read the Florida Supreme Court opinion, it said the Secretary of State will certify these additional...
Mr. Boies: Yes.
Because the contest procedure is a procedure to contest the certification.
What you are doing is you are saying this certification is wrong.
That's what every contest proceeding is.
And what the Florida Supreme Court was saying after this trial is yes, you proved that this certification is missing 250 votes.
Justice Scalia: The certification as rendered by the Secretary of State did not include those additional ballots for your client, and the Supreme Court directed that the certification would be changed to include those.
Mr. Boies: But, but Your Honor, that is what happens every time there is a successful contest.
The contest is a contest of the certification.
You have the certification results first.
Justice Kennedy: It doesn't make any sense to me.
Justice Scalia: You have a certification which is made by the Secretary of State.
That is what is contested.
Mr. Boies: Right.
Justice Scalia: And here the certification was directed to be changed.
Justice Kennedy: Let...
Justice Breyer: By the way, does it matter if they said in Palm Beach and, Palm Beach and Miami-Dade, the ones that the court said you must certify, if they were thrown into the other, said recount them.
If it's uncontested in the trial, I guess that you would get to the same place.
Mr. Boies: I think you get to exactly the same place.
Justice Breyer: So it doesn't really matter.
Mr. Boies: I think it doesn't really matter what they said.
Justice Breyer: But Broward might?
Mr. Boies: But Broward might.
Justice Breyer: Would you object if they have a different standard to recounting those?
Mr. Boies: Broward is a different situation.
Justice Breyer: Yes.
Mr. Boies: With respect to Broward, what you have is you have these votes that have been counted, and were included in the certification, and if were you to assume that that certification that came in on November 26th is somehow void, then those ballots would have to be considered just like the Dade and Palm Beach ballots, so I think there is a distinction between Broward and...
Justice Kennedy: Do you think that in the contest phase, there must be a uniform standard for counting the ballots?
Mr. Boies: I do, Your Honor.
I think there must be a uniform standard.
I think there is a uniform standard.
The question is whether that standard is too general or not.
The standard is whether or not the intent of the voter is reflected by the ballot.
That is the uniform standard throughout the State of Florida.
Chief Justice Rehnquist: That's very general.
Justice Kennedy: It runs throughout the law.
Even a dog knows the difference in being stumbled over and being kicked.
We know it, yes.
In this case... in this case what we are concerned with is an intent that focuses on this little piece of paper called a ballot, and you would say that from the standpoint of equal protection clause, could each county give their own interpretation to what intent means, so long as they are in good faith and with some reasonable basis finding intent?
Mr. Boies: I think...
Justice Kennedy: Could that vary from county to county?
Mr. Boies: I think it can vary from individual to individual.
I think that just as these findings...
Justice Kennedy: So that, so that even in one county can vary from table to table on counting these ballots?
Mr. Boies: I think on the margin, on the margin, Your Honor, whenever you are interpreting intent, whether it is in the criminal law, an administrative practice, whether it is in local government, whenever somebody is coming to government...
Justice Kennedy: But here you have something objective.
You are not just reading a person's mind.
You are looking at a piece of paper, and the supreme courts in the states of South Dakota and the other cases have told us that you will count this if it's hanging by two corners or one corner, this is susceptible of a uniform standard, and yet you say it can vary from table to table within the same county.
Mr. Boies: With respect, it is susceptible of a more specific standard, and some states, like Texas, have given a statutory definition, although even in Texas, there is a catch-all that says anything else that clearly specifies the intent of the voter.
So even, even where states have approached this in an attempt to give specificity, they have ended up with a catch-all provision that says look at the intent of the voter.
Justice Souter: But they have ended up with a catch-all provision because I assume there may be cases in which the general rule would otherwise operate in which there is an affirmative counter indication to what the general rule would provide, but I think what's bothering Justice Kennedy and it's bothering a lot of us here is we seem to have a situation here in which there is a subcategory of ballots in which we are assuming for the sake of argument since we know no better that there is no genuinely subjective indication beyond what can be viewed as either a dimple or a hanging chad, and there is a general rule being applied in a given county that an objective intent or an intent on an objective standard will be inferred, and that objective rule varies, we are told, from county to county.
Why shouldn't there be one objective rule for all counties and if there isn't, why isn't it an equal protection violation?
Mr. Boies: Let me answer both questions.
First, I don't think there is a series of objective interpretations, objective criteria that would vary county by county.
Justice Souter: All right.
But on the assumption that there may be, if we were fashioning a response to the equal protection claim, and we assume as a fact that there may be variations, wouldn't those variations as, from county to county, on objective standards, be an equal protection violation?
Mr. Boies: I don't think so.
I don't think so, Your Honor, because I think there are a lot of times in the law in which there can be those variations from jury to jury, from public official to public official.
Justice Souter: Yes, but in jury to jury cases, we assume that there is not an overall objective standard that answers all questions definitively.
We are assuming that there is detail that cannot be captured by an objective rule.
The assumption of this question, and I think, I think it's behind what's bothering Justice Kennedy, Justice Breyer, me and others, is, we're assuming there's a category in which there just is no other... there is no subjective appeal.
All we have are certain physical characteristics.
Those physical characteristics we are told are being treated differently from county to county.
In that case, where there is no subjective counter indication, isn't it a denial of equal protection to allow that variation?
Mr. Boies: I don't think, I don't think so, Your Honor, because... and maybe I am quarreling with a premise that says there are these objective criteria.
Maybe if you had specific objective criteria in one county that says we're going to count indented ballots and another county that said we're only going to count the ballot if it is punched through.
If you knew you had those two objective standards and they were different, then you might have an equal protection problem.
Justice Souter: All right, we're going to assume that we do have that.
We can't send this thing back for more fact finding.
If, if we respond to this issue and we believe that the issue is at least sufficiently raised to require a response, we've got to make the assumption, I think at this stage, that there may be such variation, and I think we would have a responsibility to tell the Florida courts what to do about it.
On that assumption, what would you tell them to do about it?
Mr. Boies: Well, I think that's a very hard question.
Justice Breyer: You would tell them to count every vote.
Justice Breyer: We're telling them to count every vote.
Mr. Boies: I would tell them to count every vote.
Justice Stevens: Let me ask you, before you answer that question, Mr. Boies...
Mr. Boies: I think, I think I would say that if you're looking for a standard, and I say that not because of the particular aspects of this election... the Texas standard, if you wanted to specify something that was specific, gives you a pretty good standard.
Justice Stevens: Let me ask you this question, Mr. Boies.
Is it really, does not the procedure that is in place there contemplates that the uniformity will be achieved by having the final results all reviewed by the same judge?
Mr. Boies: Yes, that's what I was going to say, Your Honor, that what you have here is you have a series of decisions that people get a right to object to is all going through a process, the people are there.
They submit written objections, and then that's going to be reviewed by a court.
Justice Scalia: Well, all right.
That causes me some problems that pertain not just to the equal protection aspect of this, but to the rationality of the supreme court's opinion, because the supreme court opinion on the one hand said, as you've just repeated, that there was to be de novo review by the circuit judge in Leon County.
But on the other hand, it said that he had to accept the counts that had come out of Palm Beach and Broward counties.
It was clear that Broward and Palm Beach counties had applied different criteria to dimpled ballots.
One of them was counting all dimpled ballots, the other one plainly was not.
How can you at one and the same time say it's a de novo standard as to what is the intent of the voter, and on the other hand say, you have to accept, give some deference to, quite differing standards by two different counties?
That's just not rational.
Mr. Boies: Your Honor, I think what the court held was not include both Broward and Palm Beach.
I think it was Palm Beach and Miami-Dade, because Broward was not part of the trial because Broward had been certified, and with respect to Miami-Dade and Palm Beach, I do not believe that there is evidence in the record that that was a different standard.
I don't... and there's no finding at the trial court that that was a different standard.
Indeed, what the trial court found was that both Miami-Dade and Palm Beach properly exercised their counting responsibilities, so I don't think...
Justice Scalia: What do you mean?
Properly exercised what?
Their discretion, right?
Is that what he meant by counting responsibilities?
Mr. Boies: I believe what he meant, it was discerning the clear intent of the voter, which is what they were both attempting to do.
Chief Justice Rehnquist: Was this the trial before Judge Sauls?
Mr. Boies: Yes, Your Honor.
Chief Justice Rehnquist: I thought he ruled against the contestants, said they took nothing.
Mr. Boies: Yes, that is, that is right, but he did so based on what the Florida Supreme Court held, and what six justices of the Florida Supreme Court held were two errors of law.
First, that we had to prove before he looked at the ballots that there was a probability that the election result would be changed, and second, that we had to prove abuse of discretion.
Chief Justice Rehnquist: But the fact-finding phase of that trial would be from... you say these were found as a fact in some... did he make findings of fact?
Mr. Boies: Yes, he did.
Chief Justice Rehnquist: What did he say with respect to this?
Mr. Boies: With respect to this he said... he said it separately with respect to Miami-Dade and Palm Beach.
Because he found that they had properly exercised their discretion.
The Palm Beach chairman of the canvassing board actually was a witness, Judge Burton.
He came and testified, and he testified that they used a clear intent of the voter standard.
Chief Justice Rehnquist: As opposed to just intent of the voter?
Mr. Boies: Yes, just intent.
They used clear intent of the voter.
And the statute, sometimes, in one section says clear intent of the voter.
That's the one that Petitioners' counsel is referring to.
In 166, it refers in subsection 7(b) to the intent of the voter, but Palm Beach used the clear intent of the voter and found hundreds of ballots that they could discern the clear intent of the voter from that were not machine read.
Now, in doing so, they were applying Florida law, and like the law of many states, it has a general standard, not a specific standard.
Justice O'Connor: Were those dimpled or hanging chads, so to speak?
Mr. Boies: Well, what he testified is that you looked at the entire ballot, that if you found something that was punched through all the way in many races, but just indented in one race, you didn't count that indentation, because you saw that the voter could punch it through when the voter wanted to.
On the other hand, if you found a ballot that was indented all the way through, you counted that as the intent of the voter.
Justice O'Connor: With no holes punched?
Mr. Boies: With no holes punched, but, but where it was indented in every way.
Justice O'Connor: That was counted as proper in...
Mr. Boies: In Palm Beach.
Justice O'Connor: Palm Beach.
Mr. Boies: Another, another thing that they counted was he said they discerned what voters sometimes did was instead of properly putting the ballot in where it was supposed to be, they laid it on top, and then what you would do is you would find the punches went not through the so-called chad, but through the number.
Justice O'Connor: Well, why isn't the standard the one that voters are instructed to follow, for goodness sakes?
I mean, it couldn't be clearer.
I mean, why don't we go to that standard?
Mr. Boies: Well, Your Honor, because in Florida law, since 1917, Darby against State, the Florida Supreme Court has held that where a voter's intent can be discerned, even if they don't do what they're told, that's supposed to be counted, and the thing I wanted to say about the Beckstrom case is that was a case that used optical ballots.
Voters were told, fill it in with a number two pencil.
Several thousand didn't.
They used everything else, but not a number two pencil.
And so the machine wouldn't read it.
It was voter error.
The Supreme Court in 1998, well before this election, said you've got to count those votes.
And in fact, they counted those votes even though the way the canvassing board dealt with them was to go back and mark them over with a big black marker, which made it impossible to check whether the canvassing board had really just marked over the ballot or had put a new mark on the ballot.
Justice Scalia: Mr. Boies, can I come back to this discrepancy between Palm Beach and Broward County?
I'm reading from footnote 16 of the Florida Supreme Court's opinion.
On November 9, 2000, a manual recount was requested on behalf of Vice President Gore in four counties... Miami-Dade, Broward, Palm Beach, and Volusia.
Broward County and Volusia County timely completed a manual recount.
It is undisputed that the results of the manual recounts in Volusia County and Broward County were included in the statewide certifications.
Mr. Boies: Yes, Your Honor.
Justice Scalia: And those statewide certifications the Supreme Court ordered to be accepted.
So it is... the Supreme Court, while applying a standard of supposedly de novo review of the certifications, is requiring the Circuit Court to accept both Broward County, which does one thing with dimpled ballots, and Palm Beach County, which does something clearly different.
Mr. Boies: Your Honor, the de novo review is in the contest phase, and neither Volusia County nor Broward County was a contest filed.
What the Supreme Court holds is that you've got de novo review in a contest.
A contest relates to specific ballots that are contested.
The ballots in Broward and Volusia were not contested by any party.
Justice Scalia: But the determination that the circuit court has to make about whether it's necessary to have a recount is based upon the certifications.
Mr. Boies: No.
It's only based on the...
Justice Scalia: Which he then accepts...
Mr. Boies: No.
It's only based on the certifications that are contested.
In other words, if you are going to order the manual review of the ballots, the issue is what ballots are contested, and second, is there a judicial review of those ballots.
Justice Scalia: You have to know how close the state election was, don't you?
Mr. Boies: Yes.
Justice Scalia: For which purpose you'll accept the certifications.
Mr. Boies: Yes.
Justice Scalia: And here...
Mr. Boies: And you had a certification.
Justice Scalia: And here you are telling him to accept it not de novo, but deferring to Broward County.
Mr. Boies: I think what the Supreme Court is saying is you have got a certification.
That certification shows a certain vote total.
Now, you take that certification until it is contested, and it can be contested by either or both parties.
You do not have, until it is contested, you do not have contested ballots.
Once have you contested ballots, then going back to State against Williams, Nuccio against Williams in 1929, cited in our papers, then it becomes a judicial question, and what the court holds is you then look at that as a judicial matter and that is why you have going on in Leon County the review of the Miami-Dade ballots under the court's supervision.
Now, I would point out that we asked to have the Miami-Dade ballots reviewed.
We also asked to have the 3,300 Palm Beach ballots reviewed, but the supreme court said no to us on that.
They said yes, you can have the 9,000 Miami-Dade ballots reviewed.
They also said, which we didn't ask for, they said as a matter of remedy, we want to review the undervotes all around the state.
Chief Justice Rehnquist: Mr. Boies, one of the dissenting justices in the Supreme Court of Florida said that meant 177,000 ballots.
Was he correct in your view?
Mr. Boies: No.
That is a result of adding the so-called undervotes that were mentioned and the so-called overvotes that were mentioned.
Either an undervote where no vote registers for president or an overvote where two or more registers for president are discarded, because you can't vote twice, and if you vote not at all, and in either circumstance, your vote doesn't get counted.
Chief Justice Rehnquist: So if you disagree that 177,000 ballots will be involved in this recount, how many do you think there are?
Mr. Boies: It's approximately 60,000, I think, Your Honor.
It turns out to be less than that because of the recounts that have already been completed, but I think the total sort of blank ballots for the presidency start at around 60,000.
Justice Stevens: Mr. Boies, can I ask, ask you this question.
Does that mean there are 110,000 overvotes?
Mr. Boies: That's right.
Justice Stevens: And if that's the case, what is your response to the Chief Justice of Florida's concern that the recount relates only to undervotes and not overvotes?
Mr. Boies: Well first, nobody asked for a contest of the overvotes, and the contest statute begins with a party saying that there is either a rejection of legal votes or an acceptance of illegal votes.
Justice Kennedy: But as a matter of remedy it's ordered a statewide recount in counties where the ballots were not contested, and that's where I'm having some difficulty, and it goes back to, in part to your answer that you gave to Justice Stevens... Justice Scalia about Broward County, and in part to the answer you are giving to Justice Stevens now.
Why is it that you say on the one hand to Justice Scalia, oh, well, these weren't part of the contest, but now all of a sudden we are talking about statewide, not all of which were contested, but we are not talking about the overvotes?
Mr. Boies: Two parts to the answer.
The reason that I said what I did to Justice Scalia was that I think that if this Court were to rule that there was something wrong with the statewide recounts, that they were being done by canvassing boards as opposed to directly by the court, or because the court was not supervising the particular expression of voter intent, what the court would have done is simply cut back on a remedy that we didn't ask for.
The second part is that when you are dealing with overvotes, remember, this is a machine issue.
When you are dealing with overvotes, the machine has already registered two votes.
Now, there may be another vote there, a dimpled vote or an indented vote that the machine did not register.
But once you get two votes, that ballot doesn't get counted for the presidency.
Justice Breyer: They gave an example.
The example they gave in their brief was there is a punch for Governor Bush, and then there is a punch for write-in and the write-in says I want Governor Bush and so I think their implication is that that would have been rejected by the machine, but if you looked at it by hand the intent of the voter would be clear.
Now I don't know if there are such votes, but they say there might be.
Mr. Boies: There is nothing in the record that suggests that there are such votes.
If anybody had contested the overvotes, it would have been a relatively simple process to test that because you could simply test it as to whether the double vote was a write-in vote or was another candidate.
Chief Justice Rehnquist: I gathered from the opinion of the Supreme Court of Florida that the Vice President did not ask for as broad a recount as the Supreme Court granted, but that it thought that to do just what he wanted would be unfair and therefore out of fairness, they granted the wider recount, am I correct in that?
Mr. Boies: I think that's right.
I think that's the way I would interpret it, Mr. Chief Justice.
Justice Scalia: Mr. Boies, I have one other perplexity about the scheme that's been set up here.
What... there is a very, as you point out, there is scant statutory provision concerning, concerning the contest.
There is quite detailed statutory provision concerning the protest period.
And it tells everybody how to act and time limits and all of that.
Why would anyone bother to go through the protest period, have these ballots counted by the canvassing boards, have them certify the results?
Why go through all that when the whole thing begins again with a contest?
There is no, no... once a contest filed, the certification is meaningless.
What advantage is there to win the protest?
Mr. Boies: It's not meaningless.
It becomes the baseline, and in every contest that has ever taken place, including this one, that has been the baseline that has determined 99-plus percent of the votes, and what is contested are simply those ballots that during the protest phase have been identified as disputed ballots, so that the, the protest phase solves 99 percent of the election or more.
What is left over are those ballots that one side or the other has contested, and that's what the contest deals with.
Justice Kennedy: My concern is that the contest period as we have been talking about requires the setting of standards, judicial review, and by reason of what I take it to be your earlier position in the litigation, this period has been truncated by 19 days, causing the time frame of which we are all so conscious, making it difficult for appellate review, and it seems to me, and we are getting back to the beginning of this, that the legislature could not have done that by a statute without it being under law, and that neither can the Supreme Court without it being a new law, a new scheme, a new system for recounting at this late date.
I'm very troubled by that.
Mr. Boies: But, Your Honor, at this... leaving aside the prior case about the extension of the time for certification, which I think at this stage you have to leave aside because at the contest stage, what you are doing is you are contesting specific ballots whether or not they were included in the certification.
It's absolutely clear under Florida law that that's what the contest is about, so at the contest stage, the only question is can you complete the contest of the contested ballots in the time available?
Everything that's in the record is, that we could have and indeed we still may be able to, if that count can go forward.
Chief Justice Rehnquist: Including appeals to the Supreme Court of Florida, and another petition to this Court?
Mr. Boies: Excuse me, Your Honor?
Chief Justice Rehnquist: I said after the circuit judge says that the contest comes out this way, surely there is going to be an appeal to the Supreme Court of Florida and likely another petition to this Court.
Surely that couldn't have been done by December 12th, could it?
Mr. Boies: Your Honor, I think, I think the appeal to the Florida Supreme Court could have and indeed the schedule that was set up would have made that quite possible.
There is about another day or so, except for, except for four or five counties, all of the counties would be completed in about another day.
And maybe even those counties could be now because as I understand it some of them have taken advantage of the time to get the procedures ready to count.
Chief Justice Rehnquist: Just a minute, Mr. Boies.
Wouldn't the Supreme Court of Florida want briefs and wouldn't the parties have needed time to prepare briefs?
Mr. Boies: Yes, Your Honor, but as we did in this Court, we have done in the Florida Supreme Court a number of times and that is to do the briefs and have the argument the next day and a decision within 24 hours.
Justice Scalia: After the counts are conducted in the individual counties, wouldn't the Leon County circuit judge have to review those counts?
After all, it's... I mean, the purpose of the scheme is to have a uniform determination.
Mr. Boies: To the extent that there are contested or disputed ballots...
Chief Justice Rehnquist: Right.
Mr. Boies: I think that may be so, Your Honor.
Justice Scalia: Well, wouldn't that take a fair amount of time and is that delegable?
I assume he would have to do that personally.
Mr. Boies: We believe that it could be done in the time available.
We also believe that we have available to us the argument that says you finished what we contested.
Although the supreme court has said as a matter of remedy it would be a good idea to do these other things that nobody asked for, that if it gets down to the point where you can... you have done the contest and you simply have not gotten completed all of this other remedy under 168 subsection 8, that we are still entitled under settled Florida law to have our votes counted.
Chief Justice Rehnquist: The supreme court said you had to do it all in the interest of fairness.
Mr. Boies: I think that what...
Chief Justice Rehnquist: I thought you agreed with me on that a moment ago.
Mr. Boies: I did, Your Honor.
I think that what they were saying is that as a matter of remedy this is the fairest way to do it.
I don't think they were saying that it would violate fundamental fairness to only take into account what you could get done in the time available.
There's nothing in the Supreme Court opinion that would suggest this.
Justice Scalia: Mr. Boies, would you explain to me again how the protest and the contest fits in.
You said that the... let's assume that my complaint that I want to protest is the failure to do undercounts to those ballots that were undercounted, okay?
That's my protest.
Mr. Boies: Right.
Justice Scalia: Why would I ever bring that in a protest proceeding?
Why wouldn't I just go right to the contest because it doesn't matter whether I win or lose the protest proceeding.
It's de novo at the contest stage.
What possible advantage is there to go through the protest proceeding?
Mr. Boies: If you've identified the ballots, you could presumably wait and do it at the contest phase.
There's no particular advantage to doing that.
Justice O'Connor: I thought the advantage might be as described in the Florida case, Boardman v. Esteva, saying that the certified election returns which occur after the protest period are presumptively correct, and they must be upheld unless clearly outside legal requirements.
I thought that was Florida law.
Mr. Boies: Your Honor...
Justice O'Connor: Which would make it important to have a protest.
Mr. Boies: I think that's right.
I think that is right.
I would point out that...
Justice O'Connor: I think the Florida court has sort of ignored that old Boardman case.
Mr. Boies: Your Honor, I think the Boardman case relates not to the counting of votes, it has nothing to do with the standard in terms of the intent of the voter.
The Boardman case, the language that you're referring to is at page 268 of the Southern Reporter report of that case, and what is clear from that page and that discussion is it's dealing with the issue of whether or not because the canvassing board threw away the envelopes from the absentee ballots so they could not be checked, whether that invalidated the absentee ballots, and the court says no, it doesn't, because it's important to count all these votes, and because we assume that what they were doing was proper.
That does not, I respectfully suggest, at all deal with the question of deference to the voter intent determination which the court has repeatedly said is a matter for judicial determination.
The other thing that I would say with respect to intent is I know the Court is concerned about whether the standard is too general or not.
Some states have made specific criteria their law.
Other states, not just Florida... 10 or 11 of them, including Massachusetts, in the Dellahunt case that we cited, has stuck with this very general standard.
Justice Kennedy: All right, let's assume...
Mr. Boies: There's a sense where that may be an Article II issue.
Justice Souter: Mr. Boies, let's assume that at end of the day the Leon County, Florida judge, gets a series of counts from different counties, and they heard those counties have used different standards in making their counts.
At that point, in your judgment, is it a violation of the Constitution for the Leon County judge to say, I don't care that there are different standards as long as they purported to fall on intent of the voter, that's good enough.
Chief Justice Rehnquist: I'll extend your time by two minutes, Mr. Boies.
Mr. Boies: Yes.
I do not believe that that would violate the equal protection of due process clause.
That distinction between how they interpret the intent of the voter standard is going to have a lot less effect on how votes are treated than the mere difference in the types of machines that are used.
Justice Souter: Then the fact that there is a single judge at the end of the process, in your judgment, really is not an answer to the concern that we have raised.
Mr. Boies: No, I think it is an answer.
I think there are two answers to it.
First, I think that the answer that they did it differently, different people interpreting the general standard differently, would not raise a problem even in the absence of judicial review of that.
Second, even if that would have raised a constitutional problem, I think the judicial review that provides the standardization would solve that problem.
The third thing that I was saying is that any differences as to how this standard is interpreted have a lot less significance in terms of what votes are counted or not counted than simply the differences in machines that exist throughout the counties of Florida.
There are five times as many undervotes in punch card ballot counties than in optical ballot counties.
Now, for whatever that reason is, whether it's voter error or machine problems, that statistic, you know, makes clear that there is some difference in how votes are being treated county by county.
That difference is much greater than the difference in how many votes are recovered in Palm Beach or Broward or Volusia or Miami-Dade, so that the differences of interpretation of the standard, the general standard are resulting in far fewer differences among counties than simply the differences in the machines that they have.
Justice Ginsburg: Thank you, Mr. Boies.
Mr. Boies: Thank you very much.
Rebuttal of Theodore B. Olson
Chief Justice Rehnquist: Mr. Olson, you have five minutes 13 remaining.
Mr. Olson: Thank you, Mr. Chief Justice.
I would like to start with a point or two with respect to the equal protection due process component of this case.
The Florida Democratic Party on November 20 was asking the... november 20th of this year, was asking the Florida Supreme Court to establish uniform standards with respect to the looking at and evaluating these ballots, a recognition that there were no uniform standards and that there ought to be.
Last Tuesday in the 11th Circuit, unless I misheard him, the attorney for the Attorney General of Florida said that the standards for evaluating these ballots are evolving.
There is no question, based upon this record, that there are different standards from county to county.
Justice Ginsburg: And there are different ballots from county to county too, Mr. Olson, and that's part of the argument that I don't understand.
There are machines, there's the optical scanning, and then there are a whole variety of ballots.
There is the butterfly ballot that we've heard about and other kinds of postcard ballots.
How can you have one standard when there are so many varieties of ballots?
Mr. Olson: Certainly the standard should be that similarly situated voters and similarly situated ballots ought to be evaluated by comparable standards.
Justice Ginsburg: Then you would have to have several standards, county by county?
Mr. Olson: You're certainly going to have to look at a ballot that you mark in one way different than these punch card ballots.
Our point is, with respect to the punch card ballots, is that there are different standards for evaluating those ballots from county to county and it is a documented history in this case that there have been different standards between November 7th and the present with respect to how those punch card ballots are evaluated.
Palm Springs is the best example.
They started with a clear rule which had been articulated and explained to the voters, by the way, as of 1990.
Then they got into the process of evaluating these ballots and changed the standard from moment to moment during the first day and again, they evolved from the standard that the chad had to be punched through to the so-called dimpled ballot standard, indentations on the ballot.
There was a reason why that was done.
It was because they weren't producing enough additional votes so that there's pressure on to change the standards.
And that will happen in a situation which is where the process is ultimately subjective, completely up to the discretion of the official, and there's no requirement of any uniformity.
Now, we now have something that's worse than that.
We have standards that are different throughout 64 different counties.
We've got only undercounts being considered where an indentation on a ballot will now be counted as a vote, but other ballots that may have indentations aren't going to be counted at all.
The overvotes are in a different category, and in this very remedy the ballots in Miami-Dade are being treated differently.
Some of them have been all examined and the balance of the process, the remaining 80 percent will be looked at only in connection with the undercounts.
Justice Ginsburg: Mr. Olson, do I understand that your argument on the equal protection branch would render academic what was your main argument that's troublesome, that is that we must say that the Florida Supreme Court was so misguided in its application of its own law that we reject that, and we, the Supreme Court of the United States, decide what the Florida law is?
Mr. Olson: I'm not sure I know the answer to that question, whether that would render academic the challenge.
There is a clear constitutional violation, in our opinion, with respect to Article II because virtually every aspect of Florida's election code has been changed as a result of these two decisions.
Justice Ginsburg: But the Florida Supreme Court told us that it hasn't been changed and just looking at one of the cases that you cite frequently, the O'Brien against Skinner case, this court said, well, maybe we would have decided the New York law differently but the highest court of the state has concluded otherwise.
It is not our function to construe a state statute contrary to the construction given it by the highest court of the state.
Mr. Olson: The only thing I can say in response to that is that what this Court said one week ago today, that as a general rule the court defers to a state court's interpretation of a state statute, but not where the legislature is acting under authority granted to it by the Constitution of the United States.
The final point I would like to make is with respect to section 5.
It is quite clear that the court in both the earlier decision and the decision last Friday was aware and concerned about compliance with section 5.
It construed section 5 in a way that allowed it by labeling what it was doing as interpretation to change in dramatic respects the Florida election law, and we submit because it did, so misconstrued the applicability not only with respect to finality but the other part of section 5 requires a determination of controversies pursuant to a set of laws that are in place at the time of the elections.
Justice Breyer: If you start with the premise, a clear intent of a vote should count, where there's a clear intent on the ballot, it should count as a vote, can't you reasonably get the majority's conclusion?
Mr. Olson: I don't believe so because we know different standards were being applied to get to that point, and they were having different results.
Chief Justice Rehnquist: Thank you, Mr. Olson.
The case is submitted.