Bush v Gore: The US Supreme Court decision - Part II

[The decision transcript, Part II]

II Acting pursuant to its constitutional grant of authority, the Florida Legislature has created a detailed, if not perfectly crafted, statutory scheme that provides for appointment of Presidential electors by direct election. Fla. Stat. Sec. 103.011 (2000). Under the statute, "(v)otes cast for the actual candidates for President and Vice President shall be counted as votes cast for the presidential electors supporting such candidates." Ibid. The legislature has designated the Secretary of State as the "chief election officer," with the responsibility to "(o)btain and maintain uniformity in the application, operation, and interpretation of the election laws." Sec. 97.012.

The state legislature has delegated to county canvassing boards the duties of administering elections. Sec. 102.141. Those boards are responsible for providing results to the state Elections Canvassing Commission, comprising the Governor, the Secretary of State, and the Director of the Division of Elections. Sec. 102.111. Cf. Boardman v. Esteva, 323 So. 2d 259, 268, n. 5 (1975) ("The election process . . . is committed to the executive branch of government through duly designated officials all charged with specific duties ... . (The) judgments (of these officials) are entitled to be regarded by the courts as presumptively correct . . . ").

After the election has taken place, the canvassing boards receive returns from precincts, count the votes, and in the event that a candidate was defeated by .5% or less, conduct a mandatory recount. Fla. Stat. Sec. 102.141(4) (2000). The county canvassing boards must file certified election returns with the Department of State by 5 p.m. on the seventh day following the election. Sec. 102.112(1). The Elections Canvassing Commission must then certify the results of the election. Sec. 102.111(1).

The state legislature has also provided mechanisms both for protesting election returns and for contesting certified election results. Section 102.166 governs protests. Any protest must be filed prior to the certification of election results by the county canvassing board. Sec. 102.166(4)(b). Once a protest has been filed, "the county canvassing board may authorize a manual recount." Sec. 102.166(4)(c). If a sample recount conducted pursuant to Sec. 102.166(5) "indicates an error in the vote tabulation which could affect the outcome of the election," the county canvassing board is instructed to: "(a) Correct the error and recount the remaining precincts with the vote tabulation system; (b) Request the Department of State to verify the tabulation software; or (c) Manually recount all ballots," Sec. 102.166(5). In the event a canvassing board chooses to conduct a manual recount of all ballots, Sec. 102.166(7) prescribes procedures for such a recount.

Contests to the certification of an election, on the other hand, are controlled by Sec. 102.168. The grounds for contesting an election include "(r)eceipt of a number of illegal votes or rejection of a number of legal votes sufficient to change or place in doubt the result of the election." Sec. 102.168(3)(c). Any contest must be filed in the appropriate Florida circuit court, Fla. Stat. Sec. 102.168(1), and the canvassing board or election board is the proper party defendant, Sec. 102.168(4). Section 102.168(8) provides that "(t)he circuit judge to whom the contest is presented may 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." In Presidential elections, the contest period necessarily terminates on the date set by 3 U. S. C. Sec. 5 for concluding the State's "final determination" of election controversies."

In its first decision, Palm Beach Canvassing Bd. v. Harris,------ So. 2d,------ (Nov. 21, 2000) (Harris I), the Florida Supreme Court extended the 7-day statutory certification deadline established by the legislature.(Footnote 2) This modification of the code, by lengthening the protest period, necessarily shortened the contest period for Presidential elections. Underlying the extension of the certification deadline and the shortchanging of the contest period was, presumably, the clear implication that certification was a matter of significance: The certified winner would enjoy presumptive validity, making a contest proceeding by the losing candidate an uphill battle. In its latest opinion, however, the court empties certification of virtually all legal consequence during the contest, and in doing so departs from the provisions enacted by the Florida Legislature.

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. Sec. 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.(Footnote 3).

Moreover, the court's interpretation of "legal vote," and hence its decision to order a contest-period recount, plainly departed from the legislative scheme. Florida statutory law cannot reasonably be thought to require the counting of improperly marked ballots. Each Florida precinct before election day provides instructions on how properly to cast a vote, Sec. 101.46; each polling place on election day contains a working model of the voting machine it uses, Sec. 101.5611; and each voting booth contains a sample ballot, Sec. 101.46. In precincts using punch-card ballots, voters are instructed to punch out the ballot cleanly:

AFTER VOTING, CHECK YOUR BALLOT CARD TO BE SURE YOUR VOTING SELECTIONS ARE CLEARLY AND CLEANLY PUNCHED AND THERE ARE NO CHIPS LEFT HANGING ON THE BACK OF THE CARD.

Instructions to Voters, quoted in Touchston v. McDermott, 2000 WL 1781942, ..6 & n. 19 (CA11) (Tjoflat, J., dissenting). No reasonable person would call it "an error in the vote tabulation," Fla. Stat. Sec. 102.166(5), or a "rejection of legal votes," Fla. Stat. Sec. 102.168(3)(c),(Footnote 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," Sec. 101.5606(4), but which nonetheless 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, Sec. Sec. 97.012, 106.23, rejected this peculiar reading of the statutes. See DE 00-13 (opinion of the Division of Elections). The Florida Supreme Court, although it must defer to the Secretary's interpretations, see Krivanek v. Take Back Tampa Political Committee, 625 So. 2d 840, 844 (Fla. 1993), rejected her reasonable interpretation and embraced the peculiar one. See Palm Beach County Canvassing Board v. Harris, No. SC00-2346 (Dec. 11, 2000) (Harris III).
But as we indicated in our remand of the earlier case, in a Presidential election the clearly expressed intent of the legislature must prevail.

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. We will not parse that analysis here, except to note that the principal provision of the election code on which it relied, Sec. 101.5614(5), was, as the Chief Justice pointed out in his dissent from Harris II, entirely irrelevant. See Gore v. Harris, No. SC00-2431, slip op., at 50 (Dec. 8, 2000).

The State's Attorney General (who was supporting the Gore challenge) confirmed in oral argument here that never before the present election had a manual recount been conducted on the basis of the contention that "undervotes" should have been examined to determine voter intent. Tr. of Oral Arg. in Bush v. Palm Beach County Canvassing Bd., 39-40 (Dec. 1, 2000); cf. Broward County Canvassing Board v. Hogan, 607 So. 2d 508, 509 (Fla. Ct. App. 1992) (denial of recount for failure to count ballots with "hanging paper chads"). For the court to step away from this established practice, prescribed by the Secretary of State, the state official charged by the legislature with "responsibility to ...(o)btain and maintain uniformity in the application, operation, and interpretation of the election laws," Sec. 97.012(1), was to depart from the legislative scheme.

III The scope and nature of the remedy ordered by the Florida Supreme Court jeopardizes the "legislative wish" to take advantage of the safe harbor provided by 3 U. S. C. Sec. 5. Bush v. Palm Beach County Canvassing Bd., ante, at 6. December 12, 2000, is the last date for a final determination of the Florida electors that will satisfy Sec. 5. Yet in the late afternoon of December 8th--four days before this deadline--the Supreme Court of Florida ordered recounts of tens of thousands of so-called "undervotes" spread through 64 of the State's 67 counties. This was done in a search for elusive--perhaps delusive--certainty as to the exact count of 6 million votes. 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. No one claims there was any fraud in the election. The Supreme Court of Florida ordered this additional recount under the provision of the election code giving the circuit judge the authority to provide relief that is "appropriate under such circumstances." Fla. Stat. Sec. 102.168(8) (2000).

Surely when the Florida Legislature empowered the courts of the State to grant "appropriate" relief, it must have meant relief that would have become final by the cut-off date of 3 U. S. C. Sec. 5. In light of the inevitable legal challenges and ensuing appeals to the Supreme Court of Florida and petitions for certiorari to this Court, the entire recounting process could not possibly be completed by that date. Whereas the majority in the Supreme Court of Florida stated its confidence that "the remaining undervotes in these counties can be (counted) within the required time frame,"------ So. 2d. at------, n. 22 (slip op., at 38, n. 22), it made no assertion that the seemingly inevitable appeals could be disposed of in that time. Although the Florida Supreme Court has on occasion taken over a year to resolve disputes over local elections, see, e.g., Beckstrom v. Volusia County Canvassing Bd., 707 So. 2d 720 (1998) (resolving contest of sheriff's race 16 months after the election), it has heard and decided the appeals in the present case with great promptness. But the federal deadlines for the Presidential election simply do not permit even such a shortened process.

As the dissent noted:

"In (the four days remaining), all questionable ballots must be reviewed by the judicial officer appointed to discern the intent of the voter in a process open to the public. Fairness dictates that a provision be made for either party to object to how a particular ballot is counted. Additionally, this short time period must allow for judicial review. I respectfully submit this cannot be completed without taking Florida's presidential electors outside the safe harbor provision, creating the very real possibility of disenfranchising those nearly 6 million voters who are able to correctly cast their ballots on election day."------ So. 2d, at------ (slip op., at 55) (Wells, C. J., dissenting).

The other dissenters echoed this concern: "(T)he majority is departing from the essential requirements of the law by providing a remedy which is impossible to achieve and which will ultimately lead to chaos." Id., at------ (slip op., at 67 (Harding, J., dissenting, Shaw, J. concurring).

Given all these factors, and in light of the legislative intent identified by the Florida Supreme Court to bring Florida within the "safe harbor" provision of 3 U. S. C. Sec. 5, the remedy prescribed by the Supreme Court of Florida cannot be deemed an "appropriate" one as of December 8. It significantly departed from the statutory framework in place on November 7, and authorized open-ended further proceedings which could not be completed by December 12, thereby preventing a final determination by that date.

For these reasons, in addition to those given in the per curiam, we would reverse.------
Similarly, our jurisprudence requires us to analyze the "background principles" of state property law to determine whether there has been a taking of property in violation of the Takings Clause. That constitutional guarantee would, of course, afford no protection against state power if our inquiry could be concluded by a state supreme court holding that state property law accorded the plaintiff no rights. See Lucas v. South Carolina Coastal Council, 505 U. S. 1003 (1992). In one of our oldest cases, we similarly made an independent evaluation of state law in order to protect federal treaty guarantees. In Fairfax's Devisee v. Hunter's Lessee, 7 Cranch 603 (1813), we disagreed with the Supreme Court of Appeals of Virginia that a 1782 state law had extinguished the property interests of one Denny Fairfax, so that a 1789 ejectment order against Fairfax supported by a 1785 state law did not constitute a future confiscation under the 1783 peace treaty with Great Britain. See id., at 623; Hunter v. Fairfax's Devisee, 1 Munf. 218 (Va. 1809). (Footnote 2)

We vacated that decision and remanded that case; the Florida Supreme Court reissued the same judgment with a new opinion on December 11, 2000,------ So. 2d,------. (Footnote 3)
Specifically, the Florida Supreme Court ordered the Circuit Court to include in the certified vote totals those votes identified for Vice President Gore in Palm Beach County and Miami-Dade County. (Footnote 4)

It is inconceivable that what constitutes a vote that must be counted under the "error in the vote tabulation" language of the protest phase is different from what constitutes a vote that must be counted under the "legal votes" language of the contest phase.

--- Justice Stevens, with whom Justice Ginsburg and Justice Breyer join, dissenting.

The Constitution assigns to the States the primary responsibility for determining the manner of selecting the Presidential electors. See Art. II, Sec. 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 federal questions that ultimately emerged in this case are not substantial. Article II provides that "(e)ach State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors." Ibid. (emphasis added). It does not create state legislatures out of whole cloth, but rather takes them as they come--as creatures born of, and constrained by, their state constitutions. Lest there be any doubt, we stated over 100 years ago in McPherson v. Blacker, 146 U. S. 1, 25 (1892), that "(w)hat is forbidden or required to be done by a State" in the Article II context "is forbidden or required of the legislative power under state constitutions as they exist." In the same vein, we also observed that "(t)he (State's) legislative power is the supreme authority except as limited by the constitution of the State." Ibid.; cf. Smiley v. Holm, 285 U. S. 355, 367 (1932).(Footnote 1).

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.
It hardly needs stating that Congress, pursuant to 3 U. S. C. Sec. 5, did not impose any affirmative duties upon the States that their governmental branches could "violate." Rather, Sec. 5 provides a safe harbor for States to select electors in contested elections "by judicial or other methods" established by laws prior to the election day. Section 5, like Article II, assumes the involvement of the state judiciary in interpreting state election laws and resolving election disputes under those laws. Neither Sec. 5 nor Article II grants federal judges any special authority to substitute their views for those of the state judiciary on matters of state law.
Nor are petitioners correct in asserting that the failure of the Florida Supreme Court to specify in detail the precise manner in which the "intent of the voter," Fla. Stat. Sec. 101.5614(5) (Supp. 2001), is to be determined rises to the level of a constitutional violation.(Footnote 2) We found such a violation when individual votes within the same State were weighted unequally, see, e.g., Reynolds v. Sims, 377 U. S. 533, 568 (1964), but 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 factfinders, 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.(Footnote 3)

Admittedly, the use of differing substandards for determining voter intent in different counties employing similar voting systems may raise serious concerns. 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. Of course, as a general matter, "(t)he interpretation of constitutional principles must not be too literal. We must remember that the machinery of government would not work if it were not allowed a little play in its joints." Bain Peanut Co. of Tex. v. Pinson, 282 U. S. 499, 501 (1931) (Holmes, J.). 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(Footnote 4)--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.
Even assuming that aspects of the remedial scheme might ultimately be found to violate the Equal Protection Clause, I could not subscribe to the majority's disposition of the case. As the majority explicitly holds, once a state legislature determines to select electors through a popular vote, the right to have one's vote counted is of constitutional stature. As the majority further acknowledges, Florida law holds that all ballots that reveal the intent of the voter constitute valid votes. Recognizing these principles, the majority nonetheless orders the termination of the contest proceeding before all such votes have been tabulated. Under their own reasoning, the appropriate course of action would be to remand to allow more specific procedures for implementing the legislature's uniform general standard to be established.

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. Indeed, in 1960, Hawaii appointed two slates of electors and Congress chose to count the one appointed on January 4, 1961, well after the Title 3 deadlines. See Josephson & Ross, Repairing the Electoral College, 22 J. Legis. 145, 166, n. 154 (1996).(Footnote 5) 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.(Footnote 6) 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(Footnote 7)--it decided the case before it in light of the legislature's intent to leave no legally cast vote uncounted. In so doing, it relied on the sufficiency of the general "intent of the voter" standard articulated by the state legislature, coupled with a procedure for ultimate review by an impartial judge, to resolve the concern about disparate evaluations of contested ballots. If we assume--as I do--that the members of that court and the judges who would have carried out its mandate are impartial, its decision does not even raise a colorable federal question.

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.
I respectfully dissent.------

"Wherever the term 'legislature' is used in the Constitution it is necessary to consider the nature of the particular action in view." 285 U. S., at 367. It is perfectly clear that the meaning of the words "Manner" and "Legislature" as used in Article II, Sec. 1, parallels the usage in Article I, Sec. 4, rather than the language in Article V. U. S. Term Limits, Inc. v. Thornton, 514 U. S. 779, 805 (1995). Article I, Sec. 4, and Article II, Sec. 1, both call upon legislatures to act in a lawmaking capacity whereas Article V simply calls on the legislative body to deliberate upon a binary decision. As a result, petitioners' reliance on Leser v. Garnett, 258 U. S. 130 (1922), and Hawke v. Smith (No. 1), 253 U. S. 221 (1920), is misplaced. (Footnote 2)

The Florida statutory standard is consistent with the practice of the majority of States, which apply either an "intent of the voter" standard or an "impossible to determine the elector's choice" standard in ballot recounts. The following States use an "intent of the voter" standard: Ariz. Rev. Stat. Ann. Sec. 16-645(A) (Supp. 2000) (standard for canvassing write-in votes); Conn. Gen. Stat. Sec. 9-150a(j) (1999) (standard for absentee ballots, including three conclusive presumptions); Ind. Code Sec. 3-12-1-1 (1992); Me. Rev. Stat. Ann., Tit. 21-A, Sec. 1(13) (1993); Md. Ann. Code, Art. 33, Sec. 11-302(d) (2000 Supp.) (standard for absentee ballots); Mass. Gen. Laws Sec. 70E (1991) (applying standard to Presidential primaries); Mich. Comp. Laws Sec. 168.799a(3) (Supp. 2000); Mo. Rev. Stat. Sec. 115.453(3) (Cum. Supp. 1998) (looking to voter's intent where there is substantial compliance with statutory requirements); Tex. Elec. Code Ann. Sec. 65.009(c) (1986); Utah Code Ann. Sec. 20A-4-104(5)(b) (Supp. 2000) (standard for write-in votes), Sec. 20A-4-105(6)(a) (standard for mechanical ballots); Vt. Stat. Ann., Tit. 17, Sec. 2587(a) (1982); Va. Code Ann. Sec. 24.2-644(A) (2000); Wash. Rev. Code Sec. 29.62.180(1) (Supp. 2001) (standard for write-in votes); Wyo. Stat. Ann. Sec. 22-14-104 (1999). The following States employ a standard in which a vote is counted unless it is "impossible to determine the elector's (or voter's) choice": Ala. Code Sec. 11-46-44(c) (1992), Ala. Code Sec. 17-13-2 (1995); Ariz. Rev. Stat. Ann. Sec. 16-610 (1996) (standard for rejecting ballot); Cal. Elec. Code Ann. Sec. 15154(c) (West Supp. 2000); Colo. Rev. Stat. Sec. 1-7-309(1) (1999) (standard for paper ballots), Sec. 1-7-508(2) (standard for electronic ballots); Del. Code Ann., Tit. 15, Sec. 4972(4) (1999); Idaho Code Sec. 34-1203 (1981); Ill. Comp. Stat., ch. 10, Sec. 5/7-51 (1993) (standard for primaries), id., ch. 10, Sec. 5/17-16 (1993) (standard for general elections); Iowa Code Sec. 49.98 (1999); Me. Rev. Stat. Ann., Tit. 21-A Sec. Sec. 696(2)(B), (4) (Supp. 2000); Minn. Stat. Sec. 204C.22(1) (1992); Mont. Code Ann. Sec. 13-15-202 (1997) (not counting votes if "elector's choice cannot be determined"); Nev. Rev. Stat. Sec. 293.367(d) (1995); N. Y. Elec. Law Sec. 9-112(6) (McKinney 1998); N. C. Gen. Stat. Sec. Sec. 163-169(b), 163-170 (1999); N. D. Cent. Code Sec. 16.1-15-01(1) (Supp. 1999); Ohio Rev. Code Ann. Sec. 3505.28 (1994); 26 Okla. Stat., Tit. 26, Sec. 7-127(6) (1997); Ore. Rev. Stat. Sec. 254.505(1) (1991); S. C. Code Ann. Sec. 7-13-1120 (1977); S. D. Codified Laws Sec. 12-20-7 (1995); Tenn. Code Ann. Sec. 2-7-133(b) (1994); W. Va. Code Sec. 3-6-5(g) (1999). (Footnote 3)
Cf. Victor v. Nebraska, 511 U. S. 1, 5 (1994) ("The beyond a reasonable doubt standard is a requirement of due process, but the Constitution neither prohibits trial courts from defining reasonable doubt nor requires them to do so"). (Footnote 4)

The percentage of nonvotes in this election in counties using a punch-card system was 3.92%; in contrast, the rate of error under the more modern optical-scan systems was only 1.43%. Siegel v. LePore, No. 00-15981, 2000 WL 1781946, ..31, ..32, ..43 (charts C and F) (CA11, Dec. 6, 2000). Put in other terms, for every 10,000 votes cast, punch-card systems result in 250 more nonvotes than optical-scan systems. A total of 3,718,305 votes were cast under punch-card systems, and 2,353,811 votes were cast under optical-scan systems. Ibid. (Footnote 5)

Republican electors were certified by the Acting Governor on November 28, 1960. A recount was ordered to begin on December 13, 1960. Both Democratic and Republican electors met on the appointed day to cast their votes. On January 4, 1961, the newly elected Governor certified the Democratic electors. The certification was received by Congress on January 6, the day the electoral votes were counted. Josephson & Ross, 22 J. Legis., at 166, n. 154. (Footnote 6)
When, for example, it resolved the previously unanswered question whether the word "shall" in Fla. Stat. Sec. 102.111 or the word "may" in Sec. 102.112 governs the scope of the Secretary of State's authority to ignore untimely election returns, it did not "change the law." Like any other judicial interpretation of a statute, its opinion was an authoritative interpretation of what the statute's relevant provisions have meant since they were enacted. Rivers v. Roadway Express, Inc., 511 U. S. 298, 312-313 (1994). (Footnote 7)

"It is emphatically the province and duty of the judicial department to say what the law is." Marbury v. Madison., 1 Cranch 137, 177 (1803).

--- 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. Sec. 15. The case being before us, however, its resolution by the majority is another erroneous decision.

As will be clear, I am in substantial agreement with the dissenting opinions of Justice Stevens, Justice Ginsburg and Justice Breyer. I write separately only to say how straightforward the issues before us really are.

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. Sec. 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, Sec. 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 The 3 U. S. C. Sec. 5 issue is not serious. That provision sets certain conditions for treating a State's certification of Presidential electors as conclusive in the event that a dispute over recognizing those electors must be resolved in the Congress under 3 U. S. C. Sec. 15. Conclusiveness requires selection under a legal scheme in place before the election, with results determined at least six days before the date set for casting electoral votes. But no State is required to conform to Sec. 5 if it cannot do that (for whatever reason); the sanction for failing to satisfy the conditions of Sec. 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 The second matter here goes to the State Supreme Court's interpretation of certain terms in the state statute governing election "contests," Fla. Stat. Sec. 102.168 (2000); there is no question here about the state court's interpretation of the related provisions dealing with the antecedent process of "protesting" particular vote counts, Sec. 102.166, which was involved in the previous case, Bush v. Palm Beach County Canvassing Board. The issue is whether the judgment of the state supreme court has displac