Bush et al. v. Gore et al.

2013-04-29: O’Connor Regrets Bush v. Gore 2001: Ward Farnsworth: To Do a Great Right, Do a Little Wrong: A User's Guide to Judicial Lawlessness

Notable Items:

Questions of jurisdiction, standing, and justiciability ignored.
Operational precedent of Tilden-Hayes election ignored.
Safe harbor provision of 3 U. S. C. §5 converted into absolute deadline for determining the election results.

Petitioner: George Bush et al.
Respondent: Albert Gore et al.
Venue: Supreme Court of the United States
Opinion of the Court: Bush v. Gore (2000)

Issue(s) Before the Court:

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 fail- ing to comply with 3 U. S. C. §5, and
whether the use of standardless manual recounts violates the Equal Protection and Due Process Clauses.

Petitioner's Claim(s):

[... that the Florida Supreme Court had been guilty of changing the state legislature's definition of a lawfully cast vote or of the applicable deadlines ... after the polls had closed and thus violating due process or Article II of the Constitution ....

Respondent's Claim(s):

Holding(s) and Disposition:

Held: the Florida Supreme Court's judgment ordering manual recounts is reversed.
Disposition: ... the case is remanded for further proceedings not incon- sistent with this opinion.

Material Facts:

On December 8, 2000, the Florida Supreme Court ordered, interalia,that manual recounts of ballots for the recent Presidential election were required in all Florida counties where so-called "undervotes" had not been subject to manual tabulation, and that the manual recounts should begin at once.
Petitioners, the Republican candidates for President and Vice President who had been certified as the winners in Florida, filed an emergency application for a stay of this mandate.
On December 9, this Court granted the stay application, treated it as a petition for a writ of certiorari, and granted certiorari.
... 3 U. S. C. §5, which requires that any controversy or contest that is designed to lead to a conclusive selection of electors be completed by December 12.
... there is no recount procedure in place under the state court's order that comports with minimal constitutional standards. [procedures are NOT the court's responsibility]

Procedural History:

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).
Rejecting the Circuit Court's conclusion ... the Supreme Court explained that the deadline was not intended to exclude votes identified after that date through ongoing manual recounts.

Rationale

Majority Opinion (per curiam)

The record shows that 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 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.
The formulation of uniform rules to determine [the voter's] intent based on these recurring circumstances is practicable and, we conclude, necessary.
The question before the Court is not whether local entities, in the exercise of their expertise, may develop different systems for implementing elections. [emphasis added]
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.
The judgment of the Supreme Court of Florida is reversed, and the case is remanded for further proceedings not incon- sistent with this opinion.
A full description of the rationale is available below

Rehnquist Concurrance (Scalia, Thomas) (111)

Note: Source of Independent State Legislature.
Part I (112)
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 de- cisions of state courts are definitive pronouncements of the will of the States as sovereigns.
... 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]
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.
[Title 3 U.S. C.] §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.
... we must ensure that postelection state-court actions do not frustrate the legislative desire to attain the "safe harbor" provided by §5.
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.
[We] hold that the Florida Supreme Court's interpretation of the Florida election laws impermissibly distorted them be- yond what a fair reading required, in violation of Article II.
Part II (116)
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. [It is this scheme that created the problem of non-machine-readable ballots.]
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." [which the Secretary has failed to do ... local entities, in the exercise of their expertise, may develop different systems for implementing elections." (109)]
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 .... [t]he circuit judge ... may fashion such orders as he or she deems necessary ... 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. [Source? other than Rehnquist declaration]
The scheme that the Florida Supreme Court's opinion attributes to the legislature is one in which machines are requiredto 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. [Failure of the Secretary and election authorities to fulfill the assignment of the Legistature.]
The State's Attorney General 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.
Part III (120)
The scope and nature of the remedy ordered by the Florida Supreme Court jeopardizes the "legislative wish" to take advantage of the safe harbor provided by 3 U. S. C. §5. [safe harbor overrides accurate counting]
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. {on what basis other than Rehnquist assertion?]

Stevens Dissent (Ginsburg, Breyer) (123)

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 interven- tion in state elections. This is not such an occasion.
The legislative power in Florida is subject to judicial review pursuant to Article V of the Florida Constitution, and nothing in Article II of the Federal Constitution frees the state legislature from the constraints in the State Constitution that created it.
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."
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. [See Note 2 which lists states]
... we have never before called into question the substantive standard by which a State determines that a vote has been legally cast.
Admittedly, the use of differing substandards for determining voter intent in different counties employing similar voting systems may raise serious concerns.
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 [every state'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.
Note 4: The percentage of nonvotes in this election in counties using a punch-card system was 3.92%; in contrast, the rate of error under the more modern optical-scan systems was only 1.43%.
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. nli> 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, 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. [emphasis added]
... 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. [emphasis added]
As the majority notes, "[a] desire for speed is not a general excuse for ignoring equal protection guarantees."
... [The Florida Supreme Court] 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 gen- eral "intent of the voter" standard articulated by the state legislature, ....
What must underlie petitioners' entire federal assault on the Florida election procedures is an unstated lack of confi- dence 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.

Souter Dissent (Breyer; Stevens, Ginsburg all but Part III) (129)

Ginsburg Dissent (Stevens; Souter, Breyer Part I) (135)

Breyer Dissent (Stevens, Ginsburg but for Part I-A-1; Souter Part I) (144)

Majority Full Argument (per curiam)

Part I (100)
See Material Facts
See Procedural History
Part II
Part II A Observations (103)
Nationwide statistics reveal that an estimated 2% of ballots cast do not register a vote for President for what- ever reason, including deliberately choosing no candidate at all or some voter error, such as voting for two candidates or insufficiently marking a ballot.
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.
Part II B (104)
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.
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; ....
The State, of course, after granting the franchise in the special context of Article II, can take back the power to appoint electors.
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.
The formulation of uniform rules to determine [the voter's] intent based on these recurring circumstances is practicable and, we conclude, necessary.
The want of those [specific, uniform] rules here has led to unequal evaluation of ballots in various respects.
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.
That order [of the Florida Supreme Court] did not specify who would recount the ballots.
The recount process, in its features here described, is inconsistent with the minimum procedures necessary to pro- tect the fundamental right of each voter in the special instance of a statewide recount under the authority of a single state judicial officer.
The question before the Court is not whether local entities, in the exercise of their expertise, may develop different systems for implementing elections. [emphasis added]
[ONLY] 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.
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.
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. [False statement. Missing the safe harbor date does not impair a state's participation in the federal electoral process.]
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.
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. [ignoring questions of jurisdiction, standing, and justiciability.]
The judgment of the Supreme Court of Florida is reversed, and the case is remanded for further proceedings not incon- sistent with this opinion.
The core of the rationale is available above