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

[The decision: part III]


--- Justice Ginsburg, with whom Justice Stevens joins, and with whom Justice Souter and Justice Breyer join as to Part I, dissenting.

I The Chief Justice acknowledges that provisions of Florida's Election Code "may well admit of more than one interpretation." Ante, at 3. But instead of respecting the state high court's province to say what the State's Election Code means, The Chief Justice maintains that Florida's Supreme Court has veered so far from the ordinary practice of judicial review that what it did cannot properly be called judging.

My colleagues have offered a reasonable construction of Florida's law. Their construction coincides with the view of one of Florida's seven Supreme Court justices. Gore v. Harris,---- So. 2d----,---- (Fla. 2000) (slip op., at 45-55) (Wells, C. J., dissenting); Palm Beach County Canvassing Bd. v. Harris,---- So. 2d----,---- (Fla. 2000) (slip op., at 34) (on remand) (confirming, 6-1, the construction of Florida law advanced in Gore). I might join The Chief Justice were it my commission to interpret Florida law. But 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. There is no cause here to believe that the members of Florida's high court have done less than "their mortal best to discharge their oath of office," Sumner v. Mata, 449 U. S. 539, 549 (1981), and no cause to upset their reasoned interpretation of Florida law.

This Court more than occasionally affirms statutory, and even constitutional, interpretations with which it disagrees. For example, when reviewing challenges to administrative agencies' interpretations of laws they implement, we defer to the agencies unless their interpretation violates "the unambiguously expressed intent of Congress." Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 843 (1984). We do so in the face of the declaration in Article I of the United States Constitution that "All legislative Powers herein granted shall be vested in a Congress of the United States."

Surely the Constitution does not call upon us to pay more respect to a federal administrative agency's construction of federal law than to a state high court's interpretation of its own state's law. And not uncommonly, we let stand state-court interpretations of federal law with which we might disagree. Notably, in the habeas context, the Court adheres to the view that "there is 'no intrinsic reason why the fact that a man is a federal judge should make him more competent, or conscientious, or learned with respect to (federal law) than his neighbor in the state courthouse.' " Stone v. Powell, 428 U. S. 465, 494, n. 35 (1976) (quoting Bator, Finality in Criminal Law and Federal Habeas Corpus For State Prisoners, 76 Harv. L. Rev. 441, 509 (1963)); see O'Dell v. Netherland, 521 U. S. 151, 156 (1997) ("(T)he Teague doctrine validates reasonable, good-faith interpretations of existing precedents made by state courts even though they are shown to be contrary to later decisions.") (citing Butler v. McKellar, 494 U. S. 407, 414 (1990)); O'Connor, Trends in the Relationship Between the Federal and State Courts from the Perspective of a State Court Judge, 22 Wm. & Mary L. Rev. 801, 813 (1981) ("There is no reason to assume that state court judges cannot and will not provide a 'hospitable forum' in litigating federal constitutional questions.").

No doubt there are cases in which the proper application of federal law may hinge on interpretations of state law. Unavoidably, this Court must sometimes examine state law in order to protect federal rights. But we have dealt with such cases ever mindful of the full measure of respect we owe to interpretations of state law by a State's highest court. In the Contract Clause case, General Motors Corp. v. Romein, 503 U. S. 181 (1992), for example, we said that although "ultimately we are bound to decide for ourselves whether a contract was made," the Court "accord(s) respectful consideration and great weight to the views of the State's highest court." Id., at 187 (citation omitted). And in Central Union Telephone Co. v. Edwardsville, 269 U. S. 190 (1925), we upheld the Illinois Supreme Court's interpretation of a state waiver rule, even though that interpretation resulted in the forfeiture of federal constitutional rights. Refusing to supplant Illinois law with a federal definition of waiver, we explained that the state court's declaration "should bind us unless so unfair or unreasonable in its application to those asserting a federal right as to obstruct it." Id., at 195.(Footnote 1)

In deferring to state courts on matters of state law, we appropriately recognize that this Court acts as an "'outside(r)' lacking the common exposure to local law which comes from sitting in the jurisdiction." Lehman Brothers v. Schein, 416 U. S. 386, 391 (1974). That recognition has sometimes prompted us to resolve doubts about the meaning of state law by certifying issues to a State's highest court, even when federal rights are at stake. Cf. Arizonans for Official English v. Arizona, 520 U. S. 43, 79 (1997) ("Warnings against premature adjudication of constitutional questions bear heightened attention when a federal court is asked to invalidate a State's law, for the federal tribunal risks friction-generating error when it endeavors to construe a novel state Act not yet reviewed by the State's highest court.").

Notwithstanding our authority to decide issues of state law underlying federal claims, we have used the certification devise to afford state high courts an opportunity to inform us on matters of their own State's law because such restraint "helps build a cooperative judicial federalism." Lehman Brothers, 416 U. S., at 391.

Just last Term, in Fiore v. White, 528 U. S. 23 (1999), we took advantage of Pennsylvania's certification procedure. In that case, a state prisoner brought a federal habeas action claiming that the State had failed to prove an essential element of his charged offense in violation of the Due Process Clause. Id., at 25-26. Instead of resolving the state-law question on which the federal claim depended, we certified the question to the Pennsylvania Supreme Court for that court to "help determine the proper state-law predicate for our determination of the federal constitutional questions raised." Id., at 29; id., at 28 (asking the Pennsylvania Supreme Court whether its recent interpretation of the statute under which Fiore was convicted "was always the statute's meaning, even at the time of Fiore's trial").

The Chief Justice's willingness to reverse the Florida Supreme Court's interpretation of Florida law in this case is at least in tension with our reluctance in Fiore even to interpret Pennsylvania law before seeking instruction from the Pennsylvania Supreme Court. I would have thought the "cautious approach" we counsel when federal courts address matters of state law, Arizonans, 520 U. S., at 77, and our commitment to "build(ing) cooperative judicial federalism," Lehman Brothers, 416 U. S., at 391, demanded greater restraint.

Rarely has this Court rejected outright an interpretation of state law by a state high court. Fairfax's Devisee v. Hunter's Lessee, 7 Cranch 603 (1813), NAACP v. Alabama ex rel. Patterson, 357 U. S. 449 (1958), and Bouie v. City of Columbia, 378 U. S. 347 (1964), cited by The Chief Justice, are three such rare instances. See ante, at 4, 5, and n. 2. But those cases are embedded in historical contexts hardly comparable to the situation here. Fairfax's Devisee, which held that the Virginia Court of Appeals had misconstrued its own forfeiture laws to deprive a British subject of lands secured to him by federal treaties, occurred amidst vociferous States' rights attacks on the Marshall Court. G. Gunther & K. Sullivan, Constitutional Law 61-62 (13th ed. 1997). The Virginia court refused to obey this Court's Fairfax's Devisee mandate to enter judgment for the British subject's successor in interest.

That refusal led to the Court's pathmarking decision in Martin v. Hunter's Lessee, 1 Wheat. 304 (1816). Patterson, a case decided three months after Cooper v. Aaron, 358 U. S. 1 (1958), in the face of Southern resistance to the civil rights movement, held that the Alabama Supreme Court had irregularly applied its own procedural rules to deny review of a contempt order against the NAACP arising from its refusal to disclose membership lists. We said that "our jurisdiction is not defeated if the nonfederal ground relied on by the state court is without any fair or substantial support." 357 U. S., at 455. Bouie, stemming from a lunch counter "sit-in" at the height of the civil rights movement, held that the South Carolina Supreme Court's construction of its trespass laws--criminalizing conduct not covered by the text of an otherwise clear statute--was "unforeseeable" and thus violated due process when applied retroactively to the petitioners. 378 U. S., at 350, 354.

The Chief Justice's casual citation of these cases might lead one to believe they are part of a larger collection of cases in which we said that the Constitution impelled us to train a skeptical eye on a state court's portrayal of state law. But one would be hard pressed, I think, to find additional cases that fit the mold. As Justice Breyer convincingly explains, see post, at 5-9 (dissenting opinion), this case involves nothing close to the kind of recalcitrance by a state high court that warrants extraordinary action by this Court.

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. The court surely should not be bracketed with state high courts of the Jim Crow South.

The Chief Justice says that Article II, by providing that state legislatures shall direct the manner of appointing electors, authorizes federal superintendence over the relationship between state courts and state legislatures, and licenses a departure from the usual deference we give to state court interpretations of state law. Ante, at 5 ("To attach definitive weight to the pronouncement of a state court, when the very question at issue is whether the court has actually departed from the statutory meaning, would be to abdicate our responsibility to enforce the explicit requirements of Article II.").

The Framers of our Constitution, however, understood that in a republican government, the judiciary would construe the legislature's enactments. See U. S. Const., Art. III; The Federalist No. 78 (A. Hamilton). In light of the constitutional guarantee to States of a "Republican Form of Government," U. S. Const., Art. IV, Sec. 4, Article II can hardly be read to invite this Court to disrupt a State's republican regime. Yet The Chief Justice today would reach out to do just that. By holding that Article II requires our revision of a state court's construction of state laws in order to protect one organ of the State from another, The Chief Justice contradicts the basic principle that a State may organize itself as it sees fit. See, e.g., Gregory v. Ashcroft, 501 U. S. 452, 460 (1991) ("Through the structure of its government, and the character of those who exercise government authority, a State defines itself as a sovereign."); Highland Farms Dairy, Inc. v. Agnew, 300 U. S. 608, 612 (1937) ("How power shall be distributed by a state among its governmental organs is commonly, if not always, a question for the state itself.").(Footnote 2) Article II does not call for the scrutiny undertaken by this Court.

The extraordinary setting of this case has obscured the ordinary principle that dictates its proper resolution: Federal courts defer to state high courts' interpretations of their state's own law. This principle reflects the core of federalism, on which all agree. "The Framers split the atom of sovereignty. It was the genius of their idea that our citizens would have two political capacities, one state and one federal, each protected from incursion by the other." Saenz v. Roe, 526 U. S. 489, 504, n. 17 (1999) (citing U. S. Term Limits, Inc. v. Thornton, 514 U. S. 779, 838 (1995) (Kennedy, J., concurring)).

The Chief Justice's solicitude for the Florida Legislature comes at the expense of the more fundamental solicitude we owe to the legislature's sovereign. U. S. Const., Art. II, Sec. 1, cl. 2 ("Each State shall appoint, in such Manner as the Legislature thereof may direct," the electors for President and Vice President) (emphasis added); ante, at 1-2 (Stevens, J., dissenting).(Footnote 3) Were the other members of this Court as mindful as they generally are of our system of dual sovereignty, they would affirm the judgment of the Florida Supreme Court.

II I agree with Justice Stevens that petitioners have not presented a substantial equal protection claim. Ideally, perfection would be the appropriate standard for judging the recount. But we live in an imperfect world, one in which thousands of votes have not been counted. 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. See, e.g., McDonald v. Board of Election Comm'rs of Chicago, 394 U.S. 802, 807 (1969) (even in the context of the right to vote, the state is permitted to reform " 'one step at a time' ") (quoting Williamson v. Lee Optical of Oklahoma, Inc., 348 U.S. 483, 489 (1955)).

Even if there were an equal protection violation, I would agree with Justice Stevens, Justice Souter, and Justice Breyer that the Court's concern about "the December 12 deadline," ante, at 12, is misplaced. Time is short in part because of the Court's entry of a stay on December 9, several hours after an able circuit judge in Leon County had begun to superintend the recount process.

More fundamentally, the Court's reluctance to let the recount go forward--despite its suggestion that "(t)he search for intent can be confined by specific rules designed to ensure uniform treatment," ante, at 8--ultimately turns on its own judgment about the practical realities of implementing a recount, not the judgment of those much closer to the process.
Equally important, as Justice Breyer explains, post, at 12 (dissenting opinion), the December 12 "deadline" for bringing Florida's electoral votes into 3 U. S. C. Sec. 5's safe harbor lacks the significance the Court assigns it.

Were that date to pass, Florida would still be entitled to deliver electoral votes Congress must count unless both Houses find that the votes "ha(d) not been ...regularly given." 3 U. S. C. Sec. 15. The statute identifies other significant dates. See, e.g., Sec. 7 (specifying December 18 as the date electors "shall meet and give their votes"); Sec. 12 (specifying "the fourth Wednesday in December"--this year, December 27--as the date on which Congress, if it has not received a State's electoral votes, shall request the state secretary of state to send a certified return immediately). But none of these dates has ultimate significance in light of Congress' detailed provisions for determining, on "the sixth day of January," the validity of electoral votes. Sec. 15.

The Court assumes that time will not permit "orderly judicial review of any disputed matters that might arise." Ante, at 12. But no one has doubted the good faith and diligence with which Florida election officials, attorneys for all sides of this controversy, and the courts of law have performed their duties. Notably, the Florida Supreme Court has produced two substantial opinions within 29 hours of oral argument. 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.
I dissent.------

See also Lucas v. South Carolina Coastal Council, 505 U. S. 1003, 1032, n. 18 (1992) (South Carolina could defend a regulatory taking "if an objectively reasonable application of relevant precedents (by its courts) would exclude ...beneficial uses in the circumstances in which the land is presently found"); Bishop v. Wood, 426 U. S. 341, 344-345 (1976) (deciding whether North Carolina had created a property interest cognizable under the Due Process Clause by reference to state law as interpreted by the North Carolina Supreme Court).

Similarly, in Gurley v. Rhoden, 421 U. S. 200 (1975), a gasoline retailer claimed that due process entitled him to deduct a state gasoline excise tax in computing the amount of his sales subject to a state sales tax, on the grounds that the legal incidence of the excise tax fell on his customers and that he acted merely as a collector of the tax. The Mississippi Supreme Court held that the legal incidence of the excise tax fell on petitioner. Observing that "a State's highest court is the final judicial arbiter of the meaning of state statutes," we said that "(w)hen a state court has made its own definitive determination as to the operating incidence, ...(w)e give this finding great weight in determining the natural effect of a statute, and if it is consistent with the statute's reasonable interpretation it will be deemed conclusive." Id., at 208. (Footnote 2)

Even in the rare case in which a State's "manner" of making and construing laws might implicate a structural constraint, Congress, not this Court, is likely the proper governmental entity to enforce that constraint. See U. S. Const., amend. XII; 3 U. S. C. Sec. Sec. 1-15; cf. Ohio ex rel. Davis v. Hildebrant, 241 U. S. 565, 569 (1916) (treating as a nonjusticiable political question whether use of a referendum to override a congressional districting plan enacted by the state legislature violates Art. I, Sec. 4); Luther v. Borden, 7 How. 1, 42 (1849). (Footnote 3)
"(B)ecause the Framers recognized that state power and identity were essential parts of the federal balance, see The Federalist No. 39, the Constitution is solicitous of the prerogatives of the States, even in an otherwise sovereign federal province. The Constitution ...grants States certain powers over the times, places, and manner of federal elections (subject to congressional revision), Art. I, Sec. 4, cl. 1 ... , and allows States to appoint electors for the President, Art. II, Sec. 1, cl. 2." U. S. Term Limits, Inc. v. Thornton, 514 U. S. 779, 841-842 (1995) (Kennedy, J., concurring).

--- Justice Breyer, with whom Justice Stevens and Justice Ginsburg join except as to Part I-A-1, and with whom Justice Souter joins as to Part I, dissenting.

The Court was wrong to take this case. It was wrong to grant a stay. It should now vacate that stay and permit the Florida Supreme Court to decide whether the recount should resume.
I The political implications of this case for the country are momentous. But the federal legal questions presented, with one exception, are insubstantial.

A
1 The majority raises three Equal Protection problems with the Florida Supreme Court's recount order: first, the failure to include overvotes in the manual recount; second, the fact that all ballots, rather than simply the undervotes, were recounted in some, but not all, counties; and third, the absence of a uniform, specific standard to guide the recounts. As far as the first issue is concerned, petitioners presented no evidence, to this Court or to any Florida court, that a manual recount of overvotes would identify additional legal votes. The same is true of the second, and, in addition, the majority's reasoning would seem to invalidate any state provision for a manual recount of individual counties in a statewide election.

The majority's third concern does implicate principles of fundamental fairness. The majority concludes that the Equal Protection Clause requires that a manual recount be governed not only by the uniform general standard of the "clear intent of the voter," but also by uniform subsidiary standards (for example, a uniform determination whether indented, but not perforated, "undervotes" should count). The opinion points out that the Florida Supreme Court ordered the inclusion of Broward County's undercounted "legal votes" even though those votes included ballots that were not perforated but simply "dimpled," while newly recounted ballots from other counties will likely include only votes determined to be "legal" on the basis of a stricter standard.

In light of our previous remand, the Florida Supreme Court may have been reluctant to adopt a more specific standard than that provided for by the legislature for fear of exceeding its authority under Article II. However, since the use of different standards could favor one or the other of the candidates, since time was, and is, too short to permit the lower courts to iron out significant differences through ordinary judicial review, and since the relevant distinction was embodied in the order of the State's highest court, I agree that, in these very special circumstances, basic principles of fairness may well have counseled the adoption of a uniform standard to address the problem. In light of the majority's disposition, I need not decide whether, or the extent to which, as a remedial matter, the Constitution would place limits upon the content of the uniform standard.

2 Nonetheless, there is no justification for the majority's remedy, which is simply to reverse the lower court and halt the recount entirely. An appropriate remedy would be, instead, 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, including those from Broward, Volusia, Palm Beach, and Miami-Dade Counties, whether or not previously recounted prior to the end of the protest period, and to do so in accordance with a single-uniform substandard.

The majority justifies stopping the recount entirely on the ground that there is no more time. In particular, the majority relies on the lack of time for the Secretary to review and approve equipment needed to separate undervotes. But the majority reaches this 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. The majority finds facts outside of the record on matters that state courts are in a far better position to address. Of course, it is too late for any such recount to take place by December 12, the date by which election disputes must be decided if a State is to take advantage of the safe harbor provisions of 3 U. S. C. Sec. 5. 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. See ante, at 13 (per curiam).

By halting the manual recount, and thus ensuring that the uncounted legal votes will not be counted under any standard, this Court crafts a remedy out of proportion to the asserted harm. And that remedy harms the very fairness interests the Court is attempting to protect. The manual recount would itself redress a problem of unequal treatment of ballots. As Justice Stevens points out, see ante, at 4 and n. 4 (Stevens, J., dissenting opinion), the ballots of voters in counties that use punch-card systems are more likely to be disqualified than those in counties using optical-scanning systems.

According to recent news reports, variations in the undervote rate are even more pronounced. See Fessenden, No-Vote Rates Higher in Punch Card Count, N. Y. Times, Dec. 1, 2000, p. A29 (reporting that 0.3% of ballots cast in 30 Florida counties using optical-scanning systems registered no Presidential vote, in comparison to 1.53% in the 15 counties using Votomatic punch card ballots). Thus, 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. I do not see how the fact that this results from counties' selection of different voting machines rather than a court order makes the outcome any more fair. Nor do I understand why the Florida Supreme Court's recount order, which helps to redress this inequity, must be entirely prohibited based on a deficiency that could easily be remedied.

B The remainder of petitioners' claims, which are the focus of the Chief Justice's concurrence, raise no significant federal questions. I cannot agree that the Chief Justice's unusual review of state law in this case, see ante, at 5-8 (Ginsburg, J., dissenting opinion), is justified by reference either to Art. II, Sec. 1, or to 3 U. S. C. Sec. 5. Moreover, even were such review proper, the conclusion that the Florida Supreme Court's decision contravenes federal law is untenable.

While conceding that, in most cases, "comity and respect for federalism compel us to defer to the decisions of state courts on issues of state law," the concurrence relies on some combination of Art. II, Sec. 1, and 3 U. S. C. Sec. 5 to justify the majority's conclusion that this case is one of the few in which we may lay that fundamental principle aside. Ante, at 2 (Opinion of Rehnquist, C. J. The concurrence's primary foundation for this conclusion rests on an appeal to plain text: Art. II, Sec. 1's grant of the power to appoint Presidential electors to the State "Legislature." Ibid. But neither the text of Article II itself nor the only case the concurrence cites that interprets Article II, McPherson v. Blacker, 146 U. S. 1 (1892), leads to the conclusion that Article II grants unlimited power to the legislature, devoid of any state constitutional limitations, to select the manner of appointing electors. See id., at 41 (specifically referring to state constitutional provision in upholding state law regarding selection of electors).

Nor, as Justice Stevens points out, have we interpreted the Federal constitutional provision most analogous to Art. II, Sec. 1--Art. I, Sec. 4--in the strained manner put forth in the concurrence. Ante, at 1-2 and n. 1 (dissenting opinion).

The concurrence's treatment of Sec. 5 as "inform(ing)" its interpretation of Article II, Sec. 1, cl. 2, ante, at 3 (Rehnquist, C. J., concurring), is no more convincing. The Chief Justice contends that our opinion in Bush v. Palm Beach County Canvassing Bd., ante, p.--------, (per curiam) (Bush I), in which we stated that "a legislative wish to take advantage of (Sec. 5) would counsel against" a construction of Florida law that Congress might deem to be a change in law, id., (slip op. at 6), now means that this Court "must ensure that post-election state court actions do not frustrate the legislative desire to attain the 'safe harbor' provided by Sec. 5." Ante, at 3. However, Sec. 5 is part of the rules that govern Congress' recognition of slates of electors. Nowhere in Bush I did we establish that this Court had the authority to enforce Sec. 5. Nor did we suggest that the permissive "counsel against" could be transformed into the mandatory "must ensure." And nowhere did we intimate, as the concurrence does here, that a state court decision that threatens the safe harbor provision of Sec. 5 does so in violation of Article II. The concurrence's logic turns the presumption that legislatures would wish to take advantage of Sec.
5's "safe harbor" provision into a mandate that trumps other statutory provisions and overrides the intent that the legislature did express.

But, in any event, the concurrence, having conducted its review, now reaches the wrong conclusion. It says that "the Florida Supreme Court's interpretation of the Florida election laws impermissibly distorted them beyond what a fair reading required, in violation of Article II." Ante, at 4-5 (Rehnquist, C. J, concurring). But what precisely is the distortion? Apparently, it has three elements. First, the Florida court, in its earlier opinion, changed the election certification date from November 14 to November 26. Second, the Florida court ordered a manual recount of "undercounted" ballots that could not have been fully completed by the December 12 "safe harbor" deadline. Third, the Florida court, in the opinion now under review, failed to give adequate deference to the determinations of canvassing boards and the Secretary.

To characterize the first element as a "distortion," however, requires the concurrence to second-guess the way in which the state court resolved a plain conflict in the language of different statutes. Compare Fla. Stat. Sec. 102.166 (2001) (foreseeing manual recounts during the protest period) with Sec. 102.111 (setting what is arguably too short a deadline for manual recounts to be conducted); compare Sec. 102.112(1) (stating that the Secretary "may" ignore late returns) with Sec. 102.111(1) (stating that the Secretary "shall" ignore late returns). In any event, that issue no longer has any practical importance and cannot justify the reversal of the different Florida court decision before us now.

To characterize the second element as a "distortion" requires the concurrence to overlook the fact that the inability of the Florida courts to conduct the recount on time is, in significant part, a problem of the Court's own making. The Florida Supreme Court thought that the recount could be completed on time, and, within hours, the Florida Circuit Court was moving in an orderly fashion to meet the deadline. This Court improvidently entered a stay. As a result, we will never know whether the recount could have been completed.

Nor can one characterize the third element as "impermissibl(e) distort(ing)" once one understands that there are two sides to the opinion's argument that the Florida Supreme Court "virtually eliminated the Secretary's discretion." Ante, at 9 (Rehnquist, C. J, concurring). The Florida statute in question was amended in 1999 to provide that the "grounds for contesting an election" include the "rejection of a number of legal votes sufficient to ...place in doubt the result of the election." Fla. Stat. Sec. Sec. 102.168(3), (3)(c) (2000). And the parties have argued about the proper meaning of the statute's term "legal vote."

The Secretary has claimed that a "legal vote" is a vote "properly executed in accordance with the instructions provided to all registered voters." Brief for Respondent Harris et al. 10. On that interpretation, punchcard ballots for which the machines cannot register a vote are not "legal" votes. Id., at 14. The Florida Supreme Court did not accept her definition. But it had a reason. Its reason was that a different provision of Florida election laws (a provision that addresses damaged or defective ballots) says that no vote shall be disregarded "if there is a clear indication of the intent of the voter as determined by the canvassing board" (adding that ballots should not be counted "if it is impossible to determine the elector's choice"). Fla. Stat. Sec. 101.5614(5) (2000). Given this statutory language, certain roughly analogous judicial precedent, e.g., Darby v. State ex rel. McCollough, 75 So. 411 (Fla. 1917) (per curiam), and somewhat similar determinations by courts throughout the Nation, see cases cited infra, at 9, the Florida Supreme Court concluded that the term "legal vote" means a vote recorded on a ballot that clearly reflects what the voter intended. Gore v. Harris,------ So. 2d------,------ (2000) (slip op., at 19).

That conclusion differs from the conclusion of the Secretary. But nothing in Florida law requires the Florida Supreme Court to accept as determinative the Secretary's view on such a matter. Nor can one say that the Court's ultimate determination is so unreasonable as to amount to a constitutionally "impermissible distort(ion)" of Florida law.

The Florida Supreme Court, applying this definition, decided, on the basis of the record, that respondents had shown that the ballots undercounted by the voting machines contained enough "legal votes" to place "the results" of the election "in doubt." Since only a few hundred votes separated the candidates, and sin