GEORGE W. BUSH, et al., PETITIONERS v. ALBERT GORE, Jr., et al.
on writ of certiorari to the Florida Supreme Court
(December 12, 2000)
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 Supreme Court noted that petitioner, Governor 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. 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 the
and Vice Presidency, filed an emergency application for a stay of this
mandate. On December 9, we granted the application, treated the
as a petition for a writ of certiorari, and granted certiorari.
The proceedings leading to the present controversy are discussed in some detail in our opinion in Bush v. Palm Beach County Canvassing Bd. (Bush I). On November 8, 2000, the day following the Presidential election, the Florida Division of Elections reported that petitioner, Governor Bush, had received 2,909,135 votes, and respondent, Vice President Gore, had received 2,907,351 votes, a margin of 1,784 for Governor Bush.
Because Governor Bush's margin of victory was less than ''one-half
a percent ...of the votes cast,'' an automatic machine recount was
under Section 102.141(4) of the election code, the results of which
Governor Bush still winning the race but by a diminished margin. Vice
Gore then sought manual recounts in Volusia, Palm Beach, Broward, and
Counties, pursuant to Florida's election protest provisions....
26, the Florida Elections Canvassing Commission certified the results
the election and declared Governor Bush the winner of Florida's 25
votes. On November 27, Vice President Gore, pursuant to Florida s
provisions, filed a complaint in Leon County Circuit Court contesting
He sought relief pursuant to Section 102.168(3)(c), which provides that ''receipt 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 Supreme Court [of Florida] held that Vice President Gore had
satisfied his burden
of proof with respect to his challenge to Miami-Dade
County's failure to tabulate, by manual count, 9,000 ballots on which
machines had failed to detect a vote for President (''under-votes'').
Noting the closeness of the election,
the Court explained that ''on this record, there can be no question
there are legal votes within the 9,000 uncounted votes sufficient to
the results of this election in doubt.''
A ''legal vote,'' as determined by the Supreme Court, is ''one in
there is a clear indication of the intent of the voter. '' The court
therefore ordered a hand recount of the 9,000
ballots in Miami-Dade County. Observing that the contest provisions
broad discretion in the circuit judge to ''provide any relief
under such circumstances,'' 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
The Supreme Court also determined that both Palm Beach County and
County, in their earlier manual recounts, had identified a net gain of
215 and 168 legal votes for Vice President Gore. Rejecting the Circuit
Court's conclusion that Palm Beach County
lacked the authority to include the 215 net votes submitted past the
26 deadline, the Supreme Court explained that the deadline was not
to exclude votes identified after that date through ongoing manual
As to Miami-Dade County, the Court concluded that although the 168
identified were the result of a partial recount, they were ''legal
(that) could change the outcome of the election.''
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, Section 1, cl. 2, of the United States Constitution and failing to comply with 3 U. S. C. Section 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 percent of ballots
cast do not register a vote for President for whatever reason,
deliberately choosing no candidate at all or some voter error, such as
voting for two candidates or insufficiently marking a ballot.
In certifying election results, the votes eligible for inclusion in the certification are the votes meeting the properly established legal requirements. This case has shown that punch card 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.....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. 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 of another. See, e.g., Harper v. Virginia Bd. of Elections, 383 U. S. 663, 665 (1966) (''Once 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 count them.
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 non-arbitrary 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 the voter.'' 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 fact-finder confronts a thing, not a person. The search for
can be confined by specific rules designed to ensure uniform treatment.
The want of those rules here has led to unequal evaluation of ballots
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, 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 discernable 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....
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 re-count 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....
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 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.... I
[Florida's] 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....
It is so ordered.
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. 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
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'' is to be determined rises to the level of a constitutional violation. We found such a violation when individual votes within the same State were weighted unequally, see, e.g., Reynolds v. Sims (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 everyday by ordinary citizens in courtrooms across this country....As the majority explicitly holds, once a state legislature determines to select electors through a popular vote, the right to have ones 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, the appropriate course of action would be to remand to allow more specific procedures for implementing the legislatures uniform general standard to be established.
In the interest of finality, however, the majority effectively
the disenfranchisement of an unknown number of voters whose ballots
their intent - and are therefore legal votes under state law but were
some reason rejected by ballot - counting machines. It does so on the
of the deadlines set forth in Title 3 of the United States Code.
But, as I have already noted, those provisions merely provide rules of decision for Congress to follow when selecting among conflicting slates of electors. They do not prohibit a State from counting what the majority concedes to be legal votes until a bona fide winner is determined.....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
that is the true backbone of the rule of law. Time will one day heal
wound to that confidence that will be inflicted by todays decision. One
thing, however, is certain. Although we may never know with complete
the identity of the winner of this years Presidential election, the
of the loser is perfectly clear. It is the Nations confidence in the
as an impartial guardian of the rule of law. I respectfully
JUSTICE SOUTER, with whom JUSTICE BREYER joins, dissenting.
The Court should not have reviewed either Bush v. Palm Beach County Canvassing Bd. or this case, and should not have stopped Florida's attempt to recount all undervote ballots by issuing a stay of the Florida Supreme Court' s orders during the period of this review.
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. Section 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
separately only to say how straightforward the issues before us really
Petitioners have raised an equal protection claim 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). 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 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. 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, dissenting.
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
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
would yield a result any less fair or precise than the certification
preceded that recount.
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 deadline'' 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....JUSTICE BREYER, dissenting.
Those who caution judicial restraint in resolving political disputes
have described the quintessential case for that restraint as a case
among other things, by the ''strangeness of the issue,'' its
to principled resolution,'' its ''sheer momentousness, ...which tends
unbalance judicial judgment,'' and ''the inner vulnerability, the
of an institution which is electorally irresponsible and has no earth
draw strength from.''
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 publics 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 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 Courts efforts to protect the Cherokee Indians) might have said, ''John Marshall has made his decision; now let him enforce it!'' Loth, Chief Justice John Marshall and The Growth of the American Republic 365 (1948). But we do risk a self-inflicted wound - a wound that may harm not just the Court, but the Nation.
I fear that in order to bring this agonizingly long election process
to a definitive conclusion, we have not adequately attended to that
''check upon our own exercise of power,'' ''our own sense of
self-restraint.'' Justice Brandeis once said of the Court, ''The most
important thing we
do is not doing.''
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.