Readers will follow this case from beginning to end, including the social and political climates that led up to it and the effects it had after the court made its ruling. Major players and key events are discussed, including George W.
Compelling chapters and informative sidebars also cover the Electoral College, presidential debates, hanging chads, third party candidates, and protests. Bush v. Gore forever influenced laws on voting procedures, absentee ballots, ballot design, and voting equipment.
This landmark Supreme Court case changed the course of US history and shaped the country we live in. Aligned to Common Core Standards and correlated to state standards. Author : Diana K. This text offers students an opportunity to learn the foundations of the American Legal System—the interaction and jurisdiction of the various levels of courts and their relationship to the legislature—through the most f.
Author : E. Bush and Albert Gore Jr. Four days earlier, the Florida Supreme Court had abruptly changed the dynamics of the election by reversing a lower court and ordering hand recounts of "undervotes" statewide.
The U. Supreme Court quickly stepped in to halt the recounts and agreed to hear Bush v. After brief oral arguments and a short period of deliberation, the high court reversed the state court decision.
The justices in both cases were bitterly divided, and passionate language emerged in both the majority rulings and the dissents. The drama and divisiveness of this extraordinary saga come to life in the rulings, opinions, and dissents from these two cases: U. Supreme Court case Bush v. Gore and Florida Supreme Court case Gore v. The first section of this volume gathers the complete text of both rulings, along with selections from oral arguments in the U.
Supreme Court case. The second section of the book gathers the most significant opinion pieces from journalists and scholars on both sides of the political fence. Selected and organized by political analysts E. Dionne and William Kristol, these articles illuminate the perspectives of both sides about the various twists and turns in the post-election campaign, and the landmark judicial intervention.
A companion website will provide links to documents from additional legal proceedings and other related documents and writings. The legal and historical significance of the election will be studied and debated for years to come. This volume combines the most important source documents with the most intelligent opinion and analysis about the conflict and its controversial resolution.
Bush, this situation spawned a Pandora's box of self-proclaimed Presidential analysts. The common thread among all of these pundits was the fact that no person could give an objective analysis of the election. See Gore v. As seems to have been acknowledged at oral argument, the standards for accepting or rejecting contested ballots might vary not only from county to county but indeed within a single county from one recount team to another.
The record provides some examples. A monitor in Miami-Dade County testified at trial that he observed that three members of the county canvassing board applied different standards in defining a legal vote.
And testimony at trial also revealed that at least one county changed its evaluative standards during the counting process. Palm Beach County, for example, began the process with a guideline which precluded counting completely attached chads, switched to a rule that considered a vote to be legal if any light could be seen through a chad, changed back to the rule, and then abandoned any pretense of a per se rule, only to have a court order that the county consider dimpled chads legal.
This is not a process with sufficient guarantees of equal treatment. 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 , U. The Court found a constitutional violation. We relied on these principles in the context of the Presidential selection process in Moore v.
Ogilvie, U. The State Supreme Court ratified this uneven treatment. It mandated that the recount totals from two counties, Miami-Dade and Palm Beach, be included in the certified total. The court also appeared to hold sub silentio that the recount totals from Broward County, which were not completed until after the original November 14 certification by the Secretary of State, were to be considered part of the new certified vote totals even though the county certification was not contested by Vice President Gore.
Yet each of the counties used varying standards to determine what was a legal vote. Broward County used a more forgiving standard than Palm Beach County, and uncovered almost three times as many new votes, a result markedly disproportionate to the difference in population between the counties.
In addition, the recounts in these three counties were not limited to so-called undervotes but extended to all of the ballots. The distinction has real consequences. A manual recount of all ballots identifies not only those ballots which show no vote but also those which contain more than one, the so-called overvotes.
Neither category will be counted by the machine. This is not a trivial concern. At oral argument, respondents estimated there are as many as , overvotes statewide.
As a result, the citizen whose ballot was not read by a machine because he failed to vote for a candidate in a way readable by a machine may still have his vote counted in a manual recount; on the other hand, the citizen who marks two candidates in a way discernable by the machine will not have the same opportunity to have his vote count, even if a manual examination of the ballot would reveal the requisite indicia of intent. Furthermore, the citizen who marks two candidates, only one of which is discernable by the machine, will have his vote counted even though it should have been read as an invalid ballot.
That brings the analysis to yet a further equal protection problem. The votes certified by the court included a partial total from one county, Miami-Dade. The press of time does not diminish the constitutional concern. A desire for speed is not a general excuse for ignoring equal protection guarantees. That order did not specify who would recount the ballots. The county canvassing boards were forced to pull together ad hoc teams comprised of judges from various Circuits who had no previous training in handling and interpreting ballots.
Furthermore, while others were permitted to observe, they were prohibited from objecting during the recount. The recount process, in its features here described, is 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. Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities.
The question before the Court is not whether local entities, in the exercise of their expertise, may develop different systems for implementing elections. As seems to have been acknowledged at oral argument, the standards for accepting or rejecting contested ballots might vary not only from county to county but indeed within a single county from one recount team to another.
The record provides some examples. A monitor in Miami-Dade County testified at trial that he observed that three members of the county canvassing board applied different standards in defining a legal vote.
And testimony at trial also revealed that at least one county changed its evaluative standards during the counting process. Palm Beach County, for example, began the process with a guideline which precluded counting completely attached chads, switched to a rule that consid-. This is not a process with sufficient guarantees of equal treatment. 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, U. The Court found a constitutional violation. We relied on these principles in the context of the Presidential selection process in Moore v. Ogilvie, U.
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. It mandated that the recount totals from two counties, Miami-Dade and Palm Beach, be included in the certified total. The court also appeared to hold sub silentio that the recount totals from Broward County, which were not completed until after the original November 14 certification by the Secretary, were to be considered part of the new certified vote totals even though the county certification was not contested by Vice President Gore.
Yet each of the counties used varying standards to determine what was a legal vote. Broward County used a more forgiving standard than Palm Beach County, and uncovered almost three times as many new votes, a result markedly disproportionate to the difference in population between the counties.
In addition, the recounts in these three counties were not limited to so-called undervotes but extended to all of the ballots. The distinction has real consequences. A manual recount of all ballots identifies not only those ballots which show no vote but also those which contain more than one,.
Neither category will be counted by the machine. This is not a trivial concern. At oral argument, respondents estimated there are as many as , overvotes statewide. As a result, the citizen whose ballot was not read by a machine because he failed to vote for a candidate in a way readable by a machine may still have his vote counted in a manual recount; on the other hand, the citizen who marks two candidates in a way discernible by the machine will not have the same opportunity to have his vote count, even if a manual examination of the ballot would reveal the requisite indicia of intent.
Furthermore, the citizen who marks two candidates, only one of which is discernible by the machine, will have his vote counted even though it should have been read as an invalid ballot. The State Supreme Court's inclusion of vote counts based on these variant standards exemplifies concerns with the remedial processes that were under way.
That brings the analysis to yet a further equal protection problem. The votes certified by the court included a partial total from one county, Miami-Dade. The Florida Supreme Court's decision thus gives no assurance that the recounts included in a final certification must be complete.
Indeed, it is respondents' submission that it would be consistent with the rules of the recount procedures to include whatever partial counts are done by the time of final certification, and we interpret the Florida Supreme Court's decision to permit this.
See So. Harris, at respondents' own urging. The press of time does not diminish the constitutional concern. A desire for speed is not a general excuse for ignoring equal protection guarantees. In addition to these difficulties the actual process by which the votes were to be counted under the Florida Supreme Court's decision raises further concerns. That order did not specify who would recount the ballots.
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. Furthermore, while others were permitted to observe, they were prohibited from objecting during the recount.
The recount process, in its features here described, is 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. Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities. 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. Given the Court's assessment that the recount process underway was probably being conducted in an unconstitutional manner, the Court stayed the order directing the recount so it could hear this case and render an expedited decision.
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. The problem, for instance, of the estimated , overvotes has not been.
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.
In addition, the Secretary has advised that the recount of only a portion of the ballots requires that the vote tabulation equipment be used to screen out undervotes, a function for which the machines were not designed. If a recount of overvotes were also required, perhaps even a second screening would be necessary. Use of the equipment for this purpose, and any new software developed for it, would have to be evaluated for accuracy by the Secretary, as required by Fla.
The Supreme Court of Florida has said that the legislature intended the State's electors to "participat[e] fully in the federal electoral process," as provided in 3 U. That statute, in turn, requires that any controversy or contest that is designed to lead to a conclusive selection of electors be completed by December That date is upon us, and there is no recount procedure in place under the State Supreme Court's order that comports with minimal constitutional standards.
Because it is evident that any recount seeking to meet the December 12 date will be unconstitutional for the reasons we have discussed, we reverse the judgment of the Supreme Court of Florida ordering a recount to proceed.
Seven Justices of the Court agree that there are constitutional problems with the recount ordered by the Florida Supreme Court that demand a remedy. The only disagreement is as to the remedy. Because the Florida Supreme Court has said that the Florida Legislature intended to obtain the safe-harbor benefits of 3 U.
None are more conscious of the vital limits on judicial authority than are the Members of this Court, and none stand more in admiration of the Constitution's design to leave the selection of the President to the people, through their legislatures, and to the political sphere.
When contending parties invoke the process of the courts, however, it becomes our unsought responsibility to resolve the federal and constitutional issues the judicial system has been forced to confront. The judgment of the Supreme Court of Florida is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.
Pursuant to this Court's Rule We join the per curiam opinion. We write separately because we believe there are additional grounds that require us to reverse the Florida Supreme Court's decision. We deal here not with an ordinary election, but with an election for the President of the United States. In Burroughs v. United States, U. The President is vested with the executive power of the nation.
The importance of his election and the vital character of its relationship to and effect upon the welfare and safety of the whole people cannot be too strongly stated. Likewise, in Anderson v. Celebrezze, U. For the President and the Vice President of the United States are the only elected officials who represent all the voters in the Nation. In most cases, comity and respect for federalism compel us to defer to the decisions of state courts on issues of state law.
That practice reflects our understanding that the decisions of state courts are definitive pronouncements of the will of the States as sovereigns. Erie R. Tompkins, U.
Of course, in ordinary cases, the distribution of powers among the branches of a State's government raises no questions of federal constitutional law, subject to the requirement that the government be republican in character. See U. But there are a few exceptional cases in which the Constitution imposes a duty or confers a power on a particular branch of a State's government. This is one of them. Emphasis added. In McPherson v. A significant departure from the legislative scheme for appointing Presidential electors presents a federal constitutional question.
Title 3 U. Section 5 provides that the State's selection of electors "shall be conclusive, and shall govern in the counting of the electoral votes" if the electors are chosen under laws enacted prior to election day, and if the selection process is completed six days prior to the meeting of the electoral college. As we noted in Bush v.
In Florida, the legislature has chosen to hold statewide elections to appoint the State's 25 electors. Importantly, the legislature has delegated the authority to run the elections and to oversee election disputes to the Secretary of.
State Secretary , Fla. Isolated sections of the code may well admit of more than one interpretation, but the general coherence of the legislative scheme may not be altered by judicial interpretation so as to wholly change the statutorily provided apportionment of responsibility among these various bodies.
In any election but a Presidential election, the Florida Supreme Court can give as little or as much deference to Florida's executives as it chooses, so far as Article II is concerned, and this Court will have no cause to question the court's actions. But, with respect to a Presidential election, the court must be both mindful of the legislature's role under Article II in choosing the manner of appointing electors and deferential to those bodies expressly empowered by the legislature to carry out its constitutional mandate.
In order to determine whether a state court has infringed upon the legislature's authority, we necessarily must examine the law of the State as it existed prior to the action of the court. Though we generally defer to state courts on the interpretation of state law-see, e.
Wilbur, U. Alabama ex rel. Patterson, U. Petitioner had sought a state-law writ of certiorari in the Alabama Supreme Court when a writ of mandamus, according to that court, was proper. We found this state-law ground inadequate to defeat our jurisdiction because we were "unable to reconcile the procedural holding of the Alabama Supreme Court" with prior Alabama precedent.
The purported state-law ground was so novel, in our independent. Six years later we decided Bouie v. City of Columbia, U. Relying upon NAACp, we concluded that the South Carolina Supreme Court's interpretation of a state penal statute had impermissibly broadened the scope of that statute beyond what a fair reading provided, in violation of due process. What we would do in the present case is precisely parallel: hold 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 This inquiry does not imply a disrespect for state courts but rather a respect for the constitutionally prescribed role of state legislatures.
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.
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, U. 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 , we disagreed with the Supreme Court of Appeals of Virginia that a state law had extinguished the property interests of one Denny Fairfax, so that a ejectment order against Fairfax supported by a state law did not constitute a future confiscation under the peace treaty with Great Britain. Fairfax's Devisee, 1 Mum. 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.
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. The legislature has designated the Secretary as the "chief election officer," with the responsibility to "[o]btain and maintain uniformity in the application, operation, and interpretation of the election laws.
The state legislature has delegated to county canvassing boards the duties of administering elections. 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. Boardman v. Esteva, So. 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 0.
The county canvassing boards must file certified election returns with the Department of State by 5 p. The Elections Canvassing Commission must then certify the results of the election.
The state legislature has also provided mechanisms both for protesting election returns and for contesting certified. Section Any protest must be filed prior to the certification of election results by the county canvassing board.
Once a protest has been filed, "[t]he county canvassing board may authorize a manual recount. 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.
In its first decision, Palm Beach Canvassing Bd. 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 1 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. 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 1 , thus virtually eliminating both the deadline and the Secretary's discretion to disregard recounts that violate it. 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 im-. Each Florida precinct before election day provides instructions on how properly to cast a vote, Fla. In precincts using punchcard ballots, voters are instructed to punch out the ballot cleanly:. No reasonable person would call it "an error in the vote tabulation," Fla.
This is of course absurd. See DE opinion of the Division of Elections. The Florida Supreme Court,. 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. 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.
Broward County Canvassing Board v. Hogan, So. For the court to step away from this established practice, prescribed by the Secretary, the state official charged by the legislature with "responsibility to The scope and nature of the remedy ordered by the Florida Supreme Court jeopardizes the "legislative wish" to take. Bush v. 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. 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 cutoff date of 3 U.
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. Although the Florida Supreme Court has on occasion taken over a year to resolve disputes over local elections, see, e. Volusia County Canvassing Bd. But the federal deadlines for the Presidential election simply do not permit even such a shortened process. 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 six million voters who are able to correctly cast their ballots on election day. 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.
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. 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 opinion, we would reverse.
The Constitution assigns to the States the primary responsibility for determining the manner of selecting the Presidential electors. See Art. 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. 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 years ago in McPherson v.
Smiley v. Holm, U. Term Limits, Inc. Thornton, U. As a result, petitioners' reliance on Leser v. Garnett, U. Smith No. 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. Section 5, like Article II, assumes the involvement of the state judiciary in interpreting state election laws and resolving election disputes under those laws. 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.
The following States use an "intent of the voter" standard:. Code, Art. 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 every day by ordinary citizens in courtrooms across this country.
Code Ann. 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. Compo Stat. Victor V. Nebraska, U. Admittedly, the use of differing sub standards 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. Pinson, U.
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 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 rea-. Siegel v. LePore, F. Put in other terms, for every 10, votes cast, punchcard systems result in more nonvotes than optical-scan systems. A total of 3,, votes were cast under punchcard systems, and 2,, votes were cast under optical-scan systems.
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 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 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 , Hawaii appointed two slates of electors and Congress chose to count the one appointed on January 4, , well after the Title 3 deadlines.
As the majority notes, "[a] desire for speed is not a general excuse for ignoring equal protection guarantees. A recount was ordered to begin on December 13, Both Democratic and Republican electors met on the appointed day to cast their votes. On January 4, , the newly elected Governor certified the Democratic electors. The certification was received by Congress on January 6, the day the electoral votes were counted. It did what courts do 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 dothat 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 to day'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,.
Rivers v. Roadway Express, Inc. Madison, 1 Cranch , It is the Nation's confidence in the judge as an impartial guardian of the rule of law.
The Court should not have reviewed either Bush v. Gore, post, at 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.
The case being before us, however, its resolution by the majority is another erroneous decision. 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. None of these issues is difficult to describe or to resolve.
The 3 U. 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. 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. The second matter here goes to the State Supreme Court's interpretation of certain terms in the state statute governing election "contests," Fla.
The issue is whether the judgment of the State Supreme Court has displaced the state legislature's provisions for election contests: is the law as declared by the court different from the provisions made by the legislature, to which the National Constitution commits responsibility for determining how each State's Presidential electors are chosen?
Bush does not, of course, claim that any judicial act interpreting a statute of uncertain meaning is enough to displace the legislative provision and violate Article II; statutes require interpretation, which does not without more affect the legislative char-.
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