Excerpts from the U.S. Supreme Court Decision

Here are excerpts from the U.S. Supreme Court decision late Tuesday, 2000-12-12 CE, regarding the counting of uncounted votes in Florida.

From the per curiam opinion:

"The Supreme Court of Florida has said that the legislature intended the State's electors to 'participate 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.  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.  Seven Justices of the Court agree that there are constitutional problems with the recount ordered by the Florida Supreme Court that demand a remedy.  ....  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 ....

"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.

From 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 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 ...  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....  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."

From Justice Stevens, with whom Justice Ginsburg and Justice Breyer join, dissenting:

"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.  ...

"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. 101.5614 (5) (Supp. 2001), is to be determined rises to the level of a constitutional violation."

"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."

"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."

"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.

"Finally, neither in this case, nor in its earlier opinion in Palm Beach County Canvassing Bd. v. Harris ... did the Florida Supreme Court make any substantive 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."

"What must underlie petitioners' [Bush's] 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."

From Justice Breyer's dissent: "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 justifies stopping the recount entirely on the ground that there is no more time.  In particular, the majority relies on the lack of time for the Secretary to review and approve equipment needed to separate under-votes.  But the majority reaches this conclusion in the absence of any record evidence that the recount could not have been completed in the time allowed by the Florida Supreme Court.....  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 ... 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...  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.' ....  What it does today, the Court should have left undone.  I would repair the damage done as best we now can, by permitting the Florida recount to continue under uniform standards.  I respectfully dissent."

From Justice Ginsburg's dissent: "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 'the search for intent can be confined by specific rules designed to ensure uniform treatment' ultimately turns on its own judgment about the practical realities of implementing a recount, not the judgment of those much closer to the process."

From Justice Souter's dissent, with whom Justices Breyer, Stevens and Ginsburg join:

"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 ....  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 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."

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