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CHIEF JUSTICE REHNQUIST, with whom JUSTICE SCALIA and JUSTICE THOMAS join, concurring.

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.)

Importantly, the legislature has delegated the authority to run the elections and to oversee election disputes to the Secretary
of State (Secretary), Fla. Stat. §97.012(1) (2000), and to state circuit courts, §§102.168(1), 102.168(8).

(When the legislature delegated this authority, did it not then relinquish its plenary power concerning election procedures?  And by delegating this power into other branches operating within a constitutionally defined federalist structure, including a Supreme Court with appellate review and interpretive powers, did the legislature then not invite its election procedures to be subject to the same type of federalist checks and balances applied to all statutory enactments, enforcements, and interpretations?)

 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.

(For Rehnquist's argument to work then, he must show that what the State Supreme Court's interpretation of Florida's election scope was so beyond the pale that it constitutes new election law rather than an interpretation of existing law.)

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. §102.112 (2000).

(Already he has wondered into troubled waters.  In the protest phase, canvassing boards do have discretion over counting and recounting.  However, in the contest phase, broad discretionary power is turned over to the judiciary.  As for these strict deadlines, the statute does not set deadlines for the rejection of county's returns, only their submission.  The rejection or acceptance of late returns is at the Secretary's discretion.  The Secretary can accept late returns, but it does not say under what conditions.  However, these Justices believe that such discretionary powers enable her to deny late returns for any reason she sees fit.  In this particular case, she intended to deny late returns resulting from mandatory actions undertaken by counties pursuant to another statutory provision.  Surely the legislature did not anticipate the Secretary of State using her discretionary power to render obsolete procedures required by other statutory provisions.)

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.

(This is probably the most hilarious argument in the entire opinion.  The contest is over the certification.  Therefore, a successful contest requires a change in the certification.  If the original certification made prior to the contest was immutable, what then would be the point of having a contest.  The Justices argument here would render obsolete the entire contest provision found in Florida's election code resulting in a huge change in election law.)

Florida statutory law cannot reasonably be thought to require the counting of improperly marked ballots.

(For strict "constructionists," they sure are trying to read the legislature's mind rather than their statute.  No where does the statute differentiate between properly marked and improperly marked ballots; no where does it call for differential treatment for ballots either properly or improperly marked.  The language they are using comes from a legal advisory opinion issued by the Secretary of State issued after the election, not from the statute.  Therefore, this discussion about improperly marked and/or legal votes is all based on election law written after election day by the Secretary of State.  Both the lower circuit courts and the Florida Supreme Court ruled against the Secretary of State's guidelines concerning improperly marked ballots.)

No reasonable person would call it “an error in the vote tabulation,” FLA. STAT. §102.166(5), or a “rejection of legal votes,” FLA. STAT. §102.168(3)(c),4 when electronic or electromechanical 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.

(There is nothing in the Florida statute to indicate what the legislature had in mind when it set the error in vote tabulation standard.  Again, these Justices are using the guidelines established by Harris after Election Day.  Click here for more details.  The statute certainly does not say what must cause the error; it does not specify that machine malfunction must be the cause.  Moreover, the statute never defines what constitutes a legal vote.  However, the Secretary of State did after Election Day.  Basically what theses Justices are doing is acting as if the Secretary of State has the power both to change the election laws after the election based on the discretionary powers granted her in the statute and that such changes can not be reviewed or overruled by the judiciary.)

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 of State, who is authorized by law to issue binding interpretations of the election code, §§97.012, 106.23, rejected this peculiar reading of the statutes.

(What they suggest here is that if a ballot with hanging chads on it is considered a legal vote, yet that legal vote can not be counted by the voting machines, then manual recounts would be necessary in close elections.  Such logic, they feel, would be irrational.  What these Justices are trying to establish is that the only rational way to approach an election is to only consider a legal vote one that is counted by properly functioning machines.  The only reason you would need manual recounts is if the machines weren't working.  But most states, including Texas, do exactly what these Justices think is peculiar, they allow for manual recounts to determine the outcome of close elections and/or to settle election disputes even when their counting machines are functioning properly.  A close read of Florida law suggests that it does the same.  Bush's own witness during the circuit court hearing before Judge Sauls testified to exactly what these Justices are saying is irrational; the inventor of one of the punch card systems used extensively in Florida testified that in close elections, you should perform manual recounts.  If we take these Justices and the Florida Secretary of State's view, the legislature did not intend manual recounts to occur for any reason other than machine error.  Then, why didn't the legislature use the words "error in vote tabulation caused by machine error" instead of just "error in vote tabulation"?  (Click here for details about this provision) In other words, why did the legislature not specify that the only vote tabulation error that could lead to a manual recount is one caused by machine error?  If all the legislature was concerned about was machine error, then why did they add a provision that allows a full manual recount of every ballot when an error in vote tabulation is found in a close election.  If that the protest provisions under Section 102.166 can only be utilized in the case of machine error, then why would you ever need to do anything other than fix the counting machine and or buy or borrow some properly functioning ones?   What these Justices are doing here is putting words in the statute's mouth that contradict or restrict the plain language of the statute.)

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.

(The Justices are basically arguing that when a voter makes a mistake, referred to as voter error, and does not properly cast their ballot, then it should not be considered a legal vote.  However, canvassing officials and courts not only in Florida but across the country commonly canvass ballots missed by the voting machines due to voter error.  What the Justices would have you believe is that Florida Law provides no such relief for voter error.  This interpretation comes from a legal advisory opinion issued by Harris after Election Day.  However, the Florida Supreme Court found that such an interpretation was beyond the statutory scope, contrary to Florida legal precedence, contrary to the Florida Constitution, and contrary to the right of suffrage codified by the Florida legislature.  If there is no basis for reading the Florida statutes that way, as these Justices contend, why then did 10 counties canvass improperly marked ballots during the automatic recount.  Some looked at overvotes, some looked at undervotes, some looked at both -- but the common denominator was that they were all improperly marked and thus rejected by the machines.  Click here for more details.   Moreover, several counties counted absentee ballots that were improperly cast.  Some absentee voters did not follow the directions provided for them with their ballots and improperly cast their absentee ballot.  Click here for more details.  Despite this voter error, hundreds of these votes were canvassed across the state.  Secretary Harris, the person whose own legal opinion says that improperly marked ballots are not legal votes, certified vote totals from dozens of counties that canvassed such illegal votes.  Moreover, this type of prejudice toward voter error carries substantial 14th Amendment problems.  If a state provides no relief for voter error, yet allows some counties to employ voting systems so unreliable that voters are asked to inspect their ballots for hanging chads and remove them while other counties employ voting systems that notify voters when they have made an error so that they can correct them, then the state is not providing equal protection to voters in their state.  Moreover, it would be a clear violation of the 14th Amendment for Harris to  accept improperly marked ballots as legal votes during the automatic recount (which she did), and then declare as illegal any attempt to count improperly marked ballots for the purposes of manual recounts under 102.166 but allow improperly cast absentee ballots to be canvassed.  This double standards provides unequal protection to improperly cast absentee ballots.)

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.

(Click here for information about the counting and recounting of votes in Florida.  These Justices should have just let James Baker right their opinion for them.  Their entire opinion is based not on a plain reading of Florida's election code, but on the Secretary of State's and the Bush campaign's interpretation of that election code propounded after Election Day.   Their rationale for accepting the interpretations provided by the Secretary after Election Day is the broad discretionary power granted her in the statute.  They completely ignore the fact that Florida's lower court and the Florida Supreme Court threw out these interpretations as beyond the scope of the statute.  What they then do is throw out the Florida court's interpretation of their state's laws and substitute Harris' in its place.  These Justices clearly believe that whatever the Secretary said about Florida law after Election Day must be accepted as law because of her statutorily derived discretionary power.  Such an argument requires one to believe that the discretionary powers granted to the Secretary of State somehow transcend the constitutionally defined federalist framework in which her authority exists.  What if the Secretary made a decision that went beyond the statute's scope?  Who could make such a determination?  Who would reverse such a decision?  Who would provide a remedy for any damage done by such a decision?  In the eyes of these Justices, no one can.  The Secretary's  powers can then even supersede the legislature's powers because she then becomes the final arbiter of what the legislature's election laws mean and how they should be implemented after Election Day.  No wonder neither Kennedy nor O'connor concurred with this opinion.)