Overview

I. No federal legal questions present
    A. No equal protection violations concerning the undervote count with one exception
        1. Acknowledged 14th Amendment problem with not counting undervotes by a uniform standard, but no problem with not counting overvotes or counting all ballots
        2. no justification to reverse Florida Supreme Court and halt recount
    B.  The Chief Justice's concurring opinion is fatally flawed

II. The US Supreme Court should not have taken this case
 

JUSTICE BREYER, with whom JUSTICE STEVENS and JUSTICE GINSBURG join except as to Part I–A–1, and with
whom JUSTICE SOUTER joins as to Part I, dissenting.

The Court was wrong to take this case. It was wrong to grant a stay. It should now vacate that stay and permit the Florida Supreme Court to decide whether the recount should resume.

I
The political implications of this case for the country are momentous. But the federal legal questions presented, with one exception, are insubstantial.

A
1
The majority raises three Equal Protection problems with the Florida Supreme Court’ s recount order: first, the failure to include overvotes in the manual recount; second, the fact that all ballots, rather than simply the under-votes, were recounted in some, but not all, counties; and third, the absence of a uniform, specific standard to guide the recounts. As far as the first issue is concerned, 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.

2
Nonetheless, there is no justification for the majority’s remedy, which is simply to reverse the lower court and halt the recount entirely.  An appropriate remedy would be, instead, to remand this case with instructions that, even at this late date, would permit the Florida Supreme Court to require recounting all undercounted votes in Florida, including those from Broward, Volusia, Palm Beach, and Miami-Dade Counties, whether or not previously recounted prior to the end of the protest period, and to do so in accordance with a single-uniform substandard.

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 could or could not take further action is obviously a matter for Florida courts, not this
Court, to decide. See ante, at 13 (per curiam).

By halting the manual recount, and thus ensuring that the uncounted legal votes will not be counted under any standard, this Court crafts a remedy out of proportion to the asserted harm. And that remedy harms the very fairness interests the Court is attempting to protect. The manual recount would itself redress a problem of unequal treatment of ballots. As JUSTICE STEVENS points out, see ante, at 4 and n. 4 (STEVENS, J., dissenting opinion), the ballots of voters in counties that use punch-card systems are more likely to be disqualified than those in counties using optical-scanning systems. According to recent news reports, variations in the undervote rate are even more pronounced. See Fessenden, No-Vote Rates Higher in
Punch Card Count, N. Y. Times, Dec. 1, 2000, p. A29 (reporting that 0.3% of ballots cast in 30 Florida counties using optical-scanning systems registered no Presidential vote, in comparison to 1.53% in the 15 counties using Voto-matic punch card ballots). Thus, in a system that allows counties to use different types of voting systems, voters already arrive at the polls with an unequal chance that their votes will be counted . I do not see how the fact that this results from counties’ selection of different voting machines rather than a court order makes the outcome any more fair. Nor do I understand why the Florida Supreme Court’ s recount order, which helps to redress this inequity, must be entirely prohibited based on a deficiency
that could easily be remedied.

B
The remainder of petitioners’ claims, which are the focus of the CHIEF JUSTICE’ s concurrence, raise no significant
federal questions.

Moreover, even were such review proper, the conclusion that the Florida Supreme Court’ s decision contravenes
federal law is untenable.

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...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 4–5 (REHNQUIST, C. J, concurring). But what precisely is the distortion? Apparently, it has three elements. First, the Florida court, in its earlier opinion, changed the elec-tion certification date from November 14 to November 26. Second, the Florida court ordered a manual recount of “undercounted” ballots that could not have been fully completed by the December 12 “safe harbor” deadline. Third, the Florida court, in the opinion now under review, failed to give adequate deference to the determinations of canvassing boards and the Secretary.

To characterize the first element as a “distortion,” 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. §102.166 (2001) (foreseeing manual recounts during the protest period) with §102.111 (setting what is arguably too short a deadline for manual recounts to be conducted); compare §102.112(1) (stating that the Secretary “may” ignore late returns) with §102.111(1) (stating that the Secretary “shall” ignore late returns).

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.

The Secretary has claimed that a “legal vote” is a vote “properly executed in accordance with the instruc-tions provided to all registered voters.” Brief for 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. §101.5614(5) (2000). Given this statutory language,...the Florida Supreme Court concluded that the term “legal vote” means a vote recorded on a ballot that clearly reflects what the voter intended.

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.

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 *13.
 

II
Despite the reminder that this case involves “an election for the President of the United States,” ante, at 1 (REHNQUIST, C. J., concurring), no preeminent legal 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.

Of course, the selection of the President is of fundamen-tal national importance. But that importance is political, not legal. And this Court should resist the temptation unnecessarily to resolve tangential legal disputes, where doing so threatens to determine the outcome of the elec-tion.

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 done as best we now can, by permitting the Florida recount to continue under uniform standards.