JUSTICE STEVENS, with whom JUSTICE GINSBURG AND JUSTICE BREYER join, dissenting.

FROM THE DISSENT:

Part I -- No Federal Violation (my heading)

The Constitution assigns to the States the primary responsibility for determining the manner of selecting the Presidential electors. See Art. II, §1, cl. 2. 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 legislative power in Florida is subject to judicial review pursuant to Article V of the Florida Constitution, and nothing in Article II of the Federal Constitution frees the state legislature from the constraints in the state constitution that created it.
Moreover, the Florida Legislature’s own decision to employ a unitary code for all elections indicates that it intended the Florida Supreme Court to play the same role in Presidential elections that it has historically played in resolving electoral disputes. The Florida Supreme Court's exercise of appellate jurisdiction therefore was wholly consistent with, and indeed contemplated by, the grant of authority in Article II.
 

Part II - On the Count Standard (my heading)

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.

If it were otherwise, Florida’ s decision to leave to each county the determination of what balloting system to employ—despite enormous differences in accuracy —might run afoul of equal protection. So, too, might the similar decisions of the vast majority of state legislatures to delegate to local authorities certain decisions with respect to voting systems and ballot design.

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.

It does so on the basis of the deadlines set forth in Title 3 of the United States Code. Ante, at 11. But, as I have already
noted, those provisions merely provide rules of decision for Congress to follow when selecting among conflicting slates of electors. Supra, at 2. They do not prohibit a State from counting what the majority concedes to be legal votes until a bona fide winner is determined.

Thus, nothing prevents the majority, even if it properly found an equal protection violation, from ordering relief appropriate to remedy that violation without depriving Florida voters of their right to have their votes counted. As the majority notes, “[a] desire for speed is not a general excuse for ignoring equal protection guarantees.” Ante, at 10.

Finally, neither in this case, nor in its earlier opinion in Palm Beach County Canvassing Bd. v. Harris, 2000 WL 1725434 (Fla., Nov. 21, 2000), 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’ 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. Time will one day heal the wound to that confidence that will be inflicted by today’ s decision. One thing, however, is certain. Although we may never know with complete certainty the identity of the winner of this year’ s Presidential election, the identity of the loser is perfectly clear. It is the Nation’ s confidence in the judge as an impartial guardian of the rule of law.