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).

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.

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). 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.

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

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 none-theless 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.

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.

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.