Overview
A.  No reason that counting could not continue after Dec. 12th
B.  Florida Court was interpreting, not changing law
C. The undervote count should be conducted, but using uniform standards

JUSTICE SOUTER, with whom JUSTICE BREYER joins and with whom JUSTICE STEVENS and JUSTICE GINSBURG join with regard to all but Part C, dissenting.

The Court should not have reviewed either Bush v. Palm Beach County Canvassing Bd., ante, p. ___ (per curiam), or this case, and should not have stopped Florida’ s attempt to recount all undervote ballots, see ante at ___, by issuing a stay of the Florida Supreme Court’ s orders during the period of this review, see Bush v. Gore, post at ____ (slip op., at 1).  If this Court had allowed the State to follow the course indicated by the opinions of its own Supreme Court, it is entirely possible that there
would ultimately have been no issue requiring our review, and political tension could have worked itself out in the Congress following the procedure provided in 3 U. S. C. §15.

There are three issues: whether the State Supreme Court’ s interpretation of the statute providing for a contest of the state election results somehow violates 3 U. S. C. §5; whether that court’ s construction of the state statutory provisions governing contests impermissibly changes a state law from what the State’s legislature has provided, in violation of Article II, §1, cl. 2, of the national Constitution; and whether the manner of interpreting markings on disputed ballots failing to cause machines to
register votes for President (the undervote ballots) violates the equal protection or due process guaranteed by the Fourteenth Amendment. None of these issues is difficult to describe or to resolve.

A
...no State is required to conform to §5 if it cannot do that (for whatever reason); the sanction for failing to satisfy the conditions of §5 is simply loss of what has been called its “safe harbor.” And even that determination is to be made, if made anywhere, in the Congress.

B
What Bush does argue, as I understand the contention, is that the interpretation of §102.168 was so unreasonable as to
transcend the accepted bounds of statutory interpretation, to the point of being a nonjudicial act and producing new law untethered to the legislative act in question.

1. The statute does not define a “legal vote,” the rejection of which may affect the election. The State Supreme Court was therefore required to define it, and in doing that the court looked to another election statute, §101.5614(5), dealing with damaged or defective ballots, which contains a provision that no vote shall be disregarded “if there is a clear indication of the intent of the voter as determined by a canvassing board.” The court read that objective of looking to the voter’ s intent as indicating that the legislature probably meant “legal vote” to mean a vote recorded on a ballot indicating what the voter
intended.

The Florida court next interpreted “rejection” to determine what act in the counting process may be attacked in a contest. Again, the statute does not define the term. The court majority read the word to mean simply a failure to count. ____ So. 2d, at___ (slip op., at 26–27). That reading is certainly within the bounds of common sense, given the objective to give effect to a voter’ s intent if that can be determined. A different reading, of course, is possible. The majority might have concluded that “rejection” should refer to machine malfunction, or that a ballot should not be treated as “reject[ed]” in the absence of
wrongdoing by election officials, lest contests be so easy to claim that every election will end up in one. Cf. id., at ____ (slip op., at 48) (Wells, C. J., dissenting). There is, however, nothing nonjudicial in the Florida majority’ s more hospitable reading.

Whatever people of good will and good sense may argue about the merits of the Florida court’s reading, there is no warrant for saying that it transcends the limits of reasonable statutory interpretation to the point of supplanting the statute enacted by the “legislature” within the meaning of Article II.

In sum, the interpretations by the Florida court raise no substantial question under Article II. That court engaged in permissible construction in determining that Gore had instituted a contest authorized by the state statute, and it proceeded to direct the trial judge to deal with that contest in the exercise of the discretionary powers generously conferred by Fla. Stat. §102.168(8) (2000), to “fashion such orders as he or she deems necessary to ensure that each allegation in the complaint is investigated, examined, or checked, to prevent or correct any alleged wrong, and to provide any relief appropriate under such  circumstances.”

C.
It is true that the Equal Protection Clause does not forbid the use of a variety of voting mechanisms within a jurisdiction, even though different mechanisms will have different levels of effectiveness in recording voters’ inten-tions; local variety can be justified by concerns about cost, the potential value of innovation, and so on.

In deciding what to do about this, we should take account of the fact that electoral votes are due to be cast in six days. I would therefore remand the case to the courts of Florida with instructions to establish uniform standards for evaluating the several types of ballots that have prompted differing treatments, to be applied within and among counties when passing on such identical ballots in any further recounting (or successive recounting) that the courts might order.

Unlike the majority, I see no warrant for this Court to assume that Florida could not possibly comply with this requirement before the date set for the meeting of electors, December 18.