I. The current undervote count order was reversed due to Equal Protection and Due Process concerns. Apparently, 7 Justices felt that to count the undervotes using the "intent of the voter standard would raise 14th Amendment problems.
The first part basically reversed the Florida Supreme Courts order to count the undervotes because the process delineated for conducting that count raised serious Equal Protection and Due Process concerns under the 14th Amendment. The opinion suggests that all but two Justices (Souter and Breyer), held these concerns, but it is clear from reading the dissents that Ginsburg, Stevens, Breyer and Souter all felt it was an intellectually untenable position to only raise such concerns over the attempt to count undervotes after December 8 and not be concerned about the way votes were counted since election night in Florida.
II. The clock has run out.
There is not enough time to conclude the recount under a more equitable
standard. On this part of the decision, there was a clear 5-4 split.
Five Justices felt that the Florida legislature must have wanted to have
its electors chosen by December 12th in order to maintain the "safe harbor"
it sought when it wrote legislation pursuant to Title 3 Section 5.
Such an interpretation, which is congruent with the concerns the State
Supreme Court expressed about this date, means that he clock is at 0; there
is no time to find a way to count those undervotes in a manner that would
meet the Constitution's Equal Protection standards.
Here are some salient quotes from the majority opinion with some personal parenthetical comments mixed in and italicized.
PART I (I added this heading)
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....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) (“[O]nce the franchise is granted to the electorate, lines may not be drawn which are inconsistent with the Equal Protection Clause of the Fourteenth Amendment”)....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.
(The Majority is making a strong case for why voters and their votes can not be treated differently depending upon where they live. However, it is an undeniable fact that this has been the case since Election Day in Florida (click here for more details). All the dissenting Justices either make or concur with the notion that you can't just ignore the 14th amendment problems that have been transpiring across the state since November 7th. Indeed, all across the country voters and votes are being treated differently. Based on the 14th Amendment logic, Title 3 Section 5 itself may be a violation of the Equal Protection standard because it grants legislature the ability to set procedures for presidential elections that will vary from state to state. However, in the last sentence the majority makes it clear that they intend to apply 14th Amendment concerns only to the overvotes in question here, and not to all the other votes and voters throughout the state -- a clear violation of the 14th Amendment as they construe it here).
An early case in our one person, one vote jurisprudence arose when a
State accorded arbitrary and disparate treatment to voters in its different
counties. Gray v. Sanders, 372 U. S. 368 (1963). The Court found a constitutional
violation. We relied on these principles in the context of the Presidential
selection process in Moore v. Ogilvie, 394 U. S. 814 (1969), where we invalidated
a county-based procedure that diluted the influence of citizens in larger
counties in the nominating process. There we
observed that “[t]he idea that one group can be granted greater voting
strength than another is hostile to the one man, one vote basis of our
representative government.” Id., at 819.
(Clearly, voters and their votes have been subjected to arbitrary and disparate treatment in different counties since Election Day in Florida. As Breyer notes in his dissent, "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." Undoubtedly, Some counties inspected undervotes; some counties inspected overvotes; some counties counted absentee ballots that were not properly marked; some counties rejected voting booth ballots not properly marked; some voters were required to visually inspect their ballot for errors; some voters cast their ballots on voting systems that alerted them to an error; some counties ran all their ballots back through the machines during the automatic recount; some counties performed no recount whatsoever.)
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 recount 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.
(The court here is knowingly blowing right by the 14th Amendment
problems with Florida's use of more reliable voting systems in certain
counties. In so doing, this court itself is violating the 14th Amendment
because it is treating only those votes brought before it differently than
all the votes cast prior to the State Supreme Court undervote count order
on December 8. Their own 14th Amendment logic dictates that they
must consider how all the voters have been treated, not just those that
would fall under the undervote count order. Ginsburg's comments
are apropos: "I cannot agree that the recount adopted by the Florida
court, flawed as it may be, would yield a result any less fair or precise
than the certification that preceded that recount." To use the
14th Amendment to provide special protection only to those votes at issue
in the Florida Supreme Court's remedy, violates every other voters right
to protection under the 14th Amendment. The Court turns the 14th
Amendment on its head when it uses it protect only a certain group of votes).
Seven Justices of the Court agree that there are constitutional problems
with the recount ordered by the Florida
Supreme Court that demand a remedy. See post, at 6 (SOUTER, J., dissenting);
post, at 2, 15 (BREYER, J., dis-senting).
The only disagreement is as to the remedy.
Part II -- The Remedy (my heading)
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 and due process 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.
(Title 3 Section 5 as it has been construed by the court's conservative minority and Bush's lawyers would not allow any changes to the "intent of the voter" standard, because that would be tantamount to a change in election law. This position only reinforces the inherent conflict between Title 3 Section 5 and the 14th Amendment argument. If the court finds that voting or canvassing procedures violate the Equal Protection standards during the course of vote counting, Title 3 Section 5 would not allow such problems to be addressed for that election. As for the notion that the clock expired on December 12th, four Justices disagreed. Breyer asserted that: 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." Ginsburg was even more critical in her dissent: "In sum, the Court’ s conclusion that a constitutionally adequate recount is impractical is a prophecy the Court’ s own judgment will not allow to be tested. Such an untested prophecy should not decide the Presidency of the United States.")
Bottom Line: 5 Justices said sorry, can't help you now.
Better luck next time.