531 U.S. 98 (2000)
On November 8, 2000, the day following the Presidential election, the Florida Division of Elections reported that petitioner Bush had received 2,909,135 votes and respondent Gore had received 2,907,351 votes, a margin of 1,784 for Governor Bush.1
Because Governor Bush's margin of victory was less than one-half of one percent of the votes cast, an automatic machine recount was conducted under section 102.141(4) of the Florida Election Code.2 This recount resulted in a substantially smaller margin of victory for Bush.
Respondent Gore then sought manual recounts in four counties: Volusia, Palm Beach, Broward, and Miami-Dade.3 The Florida Supreme Court enjoined certification until November 17, later directed inclusion of completed manual-recount results from Volusia and Palm Beach, and ordered Miami-Dade to finish its recount by November 22.4 On November 21 the court set a November 26 deadline for all manual recounts and for certification by the Secretary of State.5 On November 26 the Secretary certified Bush the winner by 537 votes.6
Gore filed a contest action in Leon County Circuit Court under section 102.168 alleging rejection of a sufficient number of legal votes to place the outcome in doubt.7 The circuit court denied relief.8 The Florida Supreme Court reversed in part on December 8, 2000, ordering a manual recount of all undervotes statewide under a clear-indication-of-voter-intent standard and directing inclusion of 215 net votes from Palm Beach County and 168 net votes from Miami-Dade County.9 The United States Supreme Court granted certiorari on December 9 after staying the Florida Supreme Court's order and heard argument on December 11.10 The dispute involved roughly 45,000 undervote ballots that machines had not tabulated plus partial manual counts already performed in three counties.11
Whether the manual recount procedures ordered by the Florida Supreme Court violate the Equal Protection Clause of the Fourteenth Amendment?12
Yes. The Florida Supreme Court ordered a manual recount of approximately 45,000 undervotes statewide.15 The court directed that the recount be conducted using a standard that would count a ballot if there was a clear indication of the intent of the voter.16 However, the court did not specify the precise standard to be used in determining voter intent, nor did it address the equal protection problems inherent in using different standards in different counties or by different election officials.17
The recounts in Palm Beach, Broward, and Miami-Dade Counties used varying standards. Broward County used a more forgiving standard than Palm Beach County.18 This lack of uniformity in the standards for counting ballots violates the Equal Protection Clause because it subjects voters to arbitrary and disparate treatment depending on the county in which their ballot is counted.19 The State may not, by later arbitrary and disparate treatment, value one person's vote over that of another.
The manual recount procedures ordered by the Florida Supreme Court violate the Equal Protection Clause of the Fourteenth Amendment.20
Related opinions on this issue
Joined by Justice Ginsburg
Justice Stevens, joined by Justice Ginsburg, dissented on the equal protection issue.21
He noted that the use of differing substandards for determining voter intent in different counties employing similar voting systems may raise serious concerns.22
Those concerns are alleviated if not eliminated by the fact that a single impartial magistrate will ultimately adjudicate all objections arising from the recount process.23
Justice Stevens concluded that the Florida Supreme Court's decision does not even raise a colorable federal question on this ground.24
Joined by Justice Breyer And In Part By Justice Stevens
Justice Souter, joined by Justice Breyer and in part by Justice Stevens, agreed that the recount procedures raised equal protection concerns but argued that the problems identified by the Court did not justify ending the recount altogether.25
He would have remanded the case to the Florida courts to conduct a recount using uniform standards that satisfy the Equal Protection Clause.26
Souter emphasized that the differences in treatment of ballots appeared wholly arbitrary and served no legitimate state interest.27
He stressed that the Court should have allowed Florida courts the opportunity to establish uniform standards rather than halting the process entirely.28
Whether the manual recount procedures ordered by the Florida Supreme Court violate the Due Process Clause of the Fourteenth Amendment?29
The Due Process Clause requires that the recount process be designed to ensure accuracy and fairness.30 The Florida Supreme Court's order directing a statewide recount including undervotes and overvotes without specifying precise standards for determining voter intent raised serious due process concerns.31
Yes. The recount process was not designed to ensure accuracy or fairness.32 The time constraints imposed by the Florida Supreme Court made it impossible to conduct a fair and accurate recount.33
The court ordered the manual recount of approximately 45,000 ballots statewide without specifying who would recount the ballots or providing for orderly judicial review of disputed matters.34 The county canvassing boards were forced to pull together ad hoc teams of judges from various Circuits who had no previous training in handling and interpreting ballots.35 Furthermore, while others were permitted to observe, they were prohibited from objecting during the recount.36 These features of the process are inconsistent with the minimum procedures necessary to protect the fundamental right of each voter in the special instance of a statewide recount under the authority of a single state judicial officer.37
The manual recount procedures ordered by the Florida Supreme Court raise serious due process concerns and violate the Due Process Clause of the Fourteenth Amendment.38
Related opinions on this issue
Joined by Justice Stevens And Justice Ginsburg
Justice Breyer argued that an appropriate remedy would be to remand this case with instructions that even at this late date would permit the Florida Supreme Court to require recounting all undercounted votes in Florida in accordance with a single uniform standard.39
He concluded that the majority's remedy of halting the recount was out of proportion to the asserted harm.40
Breyer noted that the majority reaches its conclusion in the absence of any record evidence that the recount could not have been completed in the time allowed by the Florida Supreme Court.41
He stressed that the Court should have allowed Florida courts the opportunity to establish uniform standards rather than halting the process entirely.
Whether the Florida Supreme Court's order for a statewide recount of undervotes is consistent with the safe harbor deadline in 3 U.S.C. § 5?42
3 U.S.C. § 5 requires that the state's determination of electors be completed by December 12.43 The Florida Supreme Court's order could not be completed by that date without violating the Equal Protection Clause.44 Therefore no recount could be conducted in a manner consistent with the requirements of equal protection and due process within the time remaining before the safe harbor deadline.45
No. The Florida Supreme Court's order could not be implemented by December 12 without violating the Equal Protection Clause.4647 The contest provision as it was mandated by the State Supreme Court is not well calculated to sustain the confidence that all citizens must have in the outcome of elections.48 The State has not shown that its procedures include the necessary safeguards.49
Upon due consideration of the difficulties identified it is obvious that the recount cannot be conducted in compliance with the requirements of equal protection and due process without substantial additional work.50 It would require not only the adoption 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.51 Because it is evident that any recount seeking to meet the December 12 date will be unconstitutional the judgment ordering a recount to proceed must be reversed.52
The Florida Supreme Court's order for a statewide recount of undervotes is not consistent with the safe harbor deadline in 3 U.S.C. § 5.53
Related opinions on this issue
Joined by Justice Stevens
Justice Ginsburg argued that the December 12 date for bringing Florida's electoral votes into 3 U.S.C. § 5's safe harbor lacks the significance the Court assigns it.54
She concluded that disagreement with the Florida court's interpretation of its own State's law does not warrant the conclusion that the justices of that court have legislated.55
Ginsburg stressed that there is no cause to believe that the members of Florida's high court have done less than their mortal best to discharge their oath of office.56
She noted that the Florida Supreme Court concluded that counting every legal vote was the overriding concern of the Florida Legislature when it enacted the State's Election Code.57
Whether the Florida Supreme Court's interpretation of the Florida Election Code violates Article II, Section 1, Clause 2 of the Constitution?58
Article II Section 1 Clause 2 of the Constitution requires that the state's election laws be interpreted in a manner consistent with the federal Constitution.59 The Florida Supreme Court's interpretation of the Florida Election Code does not meet this requirement because the court so far departed from the state's election code that its interpretation cannot be said to be a reasonable interpretation of state law.60
Yes. The Constitution's command that the states appoint electors in the manner directed by the legislature requires that the state's election laws be interpreted in a manner consistent with the federal Constitution.61 The Florida Supreme Court's interpretation of the Florida Election Code does not meet this requirement.62
The court determined that canvassing boards' decisions regarding whether to recount ballots past the certification deadline 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.63 Moreover the court's interpretation of legal vote and hence its decision to order a contest-period recount plainly departed from the legislative scheme.64 Florida statutory law cannot reasonably be thought to require the counting of improperly marked ballots.65 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 but which nonetheless regularly produces elections in which legal votes are predictably not tabulated.66 The Florida Supreme Court's decision to order a statewide recount of undervotes without specifying uniform standards for determining voter intent and without regard to the safe harbor deadline of 3 U.S.C. § 5 constituted a clear violation of Article II of the Constitution.67
The Florida Supreme Court's interpretation of the Florida Election Code violates Article II, Section 1, Clause 2 of the Constitution.68
Related opinions on this issue
Joined by Justices Scalia And Thomas
Chief Justice Rehnquist joined by Justices Scalia and Thomas wrote separately to emphasize additional grounds for reversal under Article II.69
He argued that in this case the Florida Supreme Court so far departed from the state's election code that its interpretation cannot be said to be a reasonable interpretation of state law.70
The Florida court's decision to order a statewide recount of undervotes without specifying uniform standards for determining voter intent and without regard to the safe harbor deadline of 3 U.S.C. § 5 constituted a clear violation of Article II of the Constitution.71
Rehnquist stressed that Article II gives the state legislature the broadest power of determination and leaves it to the legislature exclusively to define the method of appointment of electors.72
He explained that post-election state-court actions must not frustrate the legislative desire to attain the safe harbor provided by section 5.73