Per Curiam




[December 4, 2000]

Per Curiam.
The Supreme Court of the State of Florida interpreted its elections statutes in proceedings brought to require manual recounts of ballots, and the certification of the recount results, for votes cast in the quadrennial Presidential election held on November 7, 2000. Governor George W. Bush, Republican candidate for the Presidency, filed a petition for certiorari to review the Florida Supreme Court decision. We granted certiorari on two of the questions presented by petitioner: whether the decision of the Florida Supreme Court, by effectively changing the State’s elector appointment procedures after election day, violated the Due Process Clause or 3 U.S.C. § 5 and whether the decision of that court changed the manner in which the State’s electors are to be selected, in violation of the legislature’s power to designate the manner for selection under Art. II, §1, cl. 2 of the United States Constitution. 531 U.S. ____ (2000).

On November 8, 2000, the day following the Presidential election, the Florida Division of Elections reported that Governor Bush had received 2,909,135 votes, and respondent Democrat Vice President Albert Gore, Jr., had received 2,907,351, a margin of 1,784 in Governor Bush’s favor. Under Fla. Stat. §102.141(4) (2000), because the margin of victory was equal to or less than one-half of one percent of the votes cast, an automatic machine recount occurred. The recount resulted in a much smaller margin of victory for Governor Bush. Vice President Gore then exercised his statutory right to submit written requests for manual recounts to the canvassing board of any county. See §102.166. He requested recounts in four counties: Volusia, Palm Beach, Broward, and Miami-Dade.

The parties urged conflicting interpretations of the Florida Election Code respecting the authority of the canvassing boards, the Secretary of State (hereinafter Secretary), and the Elections Canvassing Commission. On November 14, in an action brought by Volusia County, and joined by the Palm Beach County Canvassing Board, Vice President Gore, and the Florida Democratic Party, the Florida Circuit Court ruled that the statutory 7-day deadline was mandatory, but that the Volusia board could amend its returns at a later date. The court further ruled that the Secretary, after “considering all attendant facts and circumstances,” App. to Pet. for Cert. 49a, could exercise her discretion in deciding whether to include the late amended returns in the statewide certification.

The Secretary responded by issuing a set of criteria by which she would decide whether to allow a late filing. The Secretary ordered that, by 2 p.m. the following day, November 15, any county desiring to forward late returns submit a written statement of the facts and circumstances justifying a later filing. Four counties submitted statements and, after reviewing the submissions, the Secretary determined that none justified an extension of the filing deadline. On November 16, the Florida Democratic Party and Vice President Gore filed an emergency motion in the state court, arguing that the Secretary had acted arbitrarily and in contempt of the court’s earlier ruling. The following day, the court denied the motion, ruling that the Secretary had not acted arbitrarily and had exercised her discretion in a reasonable manner consistent with the court’s earlier ruling. The Democratic Party and Vice President Gore appealed to the First District Court of Appeal, which certified the matter to the Florida Supreme Court. That court accepted jurisdiction and sua sponte entered an order enjoining the Secretary and the Elections Canvassing Commission from finally certifying the results of the election and declaring a winner until further order of that court.

The Supreme Court, with the expedition requisite for the controversy, issued its decision on November 21. Palm Beach County Canvassing Bd. v. Harris, Nos. SC00—2346, SC00—2348, and SC00—2349 (Nov. 21, 2000), App. to Pet. for Cert. 1a. As the court saw the matter, there were two principal questions: whether a discrepancy between an original machine return and a sample manual recount resulting from the way a ballot has been marked or punched is an “error in vote tabulation” justifying a full manual recount; and how to reconcile what it spoke of as two conflicts in Florida’s election laws: (a) between the time frame for conducting a manual recount under Fla. Stat. §102.166 (2000) and the time frame for submitting county returns under §§102.111 and 102.112, and (b) between §102.111, which provides that the Secretary “shall … ignor[e]” late election returns, and §102.112, which provides that she “may … ignor[e]” such returns.

With regard to the first issue, the court held that, under the plain text of the statute, a discrepancy between a sample manual recount and machine returns due to the way in which a ballot was punched or marked did constitute an “error in vote tabulation” sufficient to trigger the statutory provisions for a full manual recount.

With regard to the second issue, the court held that the “shall … ignor[e]” provision of §102.111 conflicts with the “may . . . ignor[e]” provision of §102.112, and that the “may … ignor[e]” provision controlled. The court turned to the questions whether and when the Secretary may ignore late manual recounts. The court relied in part upon the right to vote set forth in the Declaration of Rights of the Florida Constitution in concluding that late manual recounts could be rejected only under limited circumstances. The court then stated: “[B]ecause of our reluctance to rewrite the Florida Election Code, we conclude that we must invoke the equitable powers of this Court to fashion a remedy … .” App. to Pet. for Cert. 37a. The court thus imposed a deadline of November 26, at 5 p.m., for a return of ballot counts. The 7-day deadline of §102.111, assuming it would have applied, was effectively extended by 12 days. The court further directed the Secretary to accept manual counts submitted prior to that deadline.

As a general rule, this Court defers to a state court’s interpretation of a state statute. But in the case of a law enacted by a state legislature applicable not only to elections to state offices, but also to the selection of Presidential electors, the legislature is not acting solely under the authority given it by the people of the State, but by virtue of a direct grant of authority made under Art. II, §1, cl. 2, of the United States Constitution. That provision reads:

“Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress … .”

Although we did not address the same question petitioner raises here, in McPherson v. Blacker, 146 U.S. 1, 25 (1892), we said:

“[Art. II, §1, cl. 2] does not read that the people or the citizens shall appoint, but that ‘each State shall’; and if the words ‘in such manner as the legislature thereof may direct,’ had been omitted, it would seem that the legislative power of appointment could not have been successfully questioned in the absence of any provision in the state constitution in that regard. Hence the insertion of those words, while operating as a limitation upon the State in respect of any attempt to circumscribe the legislative power, cannot be held to operate as a limitation on that power itself.”

There are expressions in the opinion of the Supreme Court of Florida that may be read to indicate that it construed the Florida Election Code without regard to the extent to which the Florida Constitution could, consistent with Art. II, §1, cl. 2, “circumscribe the legislative power.” The opinion states, for example, that “[t]o the extent that the Legislature may enact laws regulating the electoral process, those laws are valid only if they impose no ‘unreasonable or unnecessary’ restraints on the right of suffrage” guaranteed by the state constitution. App. to Pet. for Cert. 30a. The opinion also states that “[b]ecause election laws are intended to facilitate the right of suffrage, such laws must be liberally construed in favor of the citizens’ right to vote … .” Ibid.

In addition, 3 U.S.C. § 5 provides in pertinent part:

“If any State shall have provided, by laws enacted prior to the day fixed for the appointment of the electors, for its final determination of any controversy or contest concerning the appointment of all or any of the electors of such State, by judicial or other methods or procedures, and such determination shall have been made at least six days before the time fixed for the meeting of the electors, such determination made pursuant to such law so existing on said day, and made at least six days prior to said time of meeting of the electors, shall be conclusive, and shall govern in the counting of the electoral votes as provided in the Constitution, and as hereinafter regulated, so far as the ascertainment of the electors appointed by such State is concerned.”

The parties before us agree that whatever else may be the effect of this section, it creates a “safe harbor” for a State insofar as congressional consideration of its electoral votes is concerned. If the state legislature has provided for final determination of contests or controversies by a law made prior to election day, that determination shall be conclusive if made at least six days prior to said time of meeting of the electors. The Florida Supreme Court cited 3 U.S.C. § 1—10 in a footnote of its opinion, App. to Pet. for Cert. 32a, n. 55, but did not discuss §5. Since §5 contains a principle of federal law that would assure finality of the State’s determination if made pursuant to a state law in effect before the election, a legislative wish to take advantage of the “safe harbor” would counsel against any construction of the Election Code that Congress might deem to be a change in the law.

After reviewing the opinion of the Florida Supreme Court, we find “that there is considerable uncertainty as to the precise grounds for the decision.” Minnesota v. National Tea Co., 309 U.S. 551, 555 (1940). This is sufficient reason for us to decline at this time to review the federal questions asserted to be present. See ibid.

“It is fundamental that state courts be left free and unfettered by us in interpreting their state constitutions. But it is equally important that ambiguous or obscure adjudications by state courts do not stand as barriers to a determination by this Court of the validity under the federal constitution of state action. Intelligent exercise of our appellate powers compels us to ask for the elimination of the obscurities and ambiguities from the opinions in such cases.” Id., at 557.

Specifically, we are unclear as to the extent to which the Florida Supreme Court saw the Florida Constitution as circumscribing the legislature’s authority under Art. II, §1, cl. 2. We are also unclear as to the consideration the Florida Supreme Court accorded to 3 U.S.C. § 5. The judgment of the Supreme Court of Florida is therefore vacated, and the case is remanded for further proceedings not inconsistent with this opinion.

It is so ordered.

Gore camp: Supreme Court move 'neutral development'
Monday, 4 December 2000 17:06 (ET)

Gore camp: Supreme Court move 'neutral development'

WASHINGTON, Dec. 4 (UPI) - Republican Presidential candidate Texas Gov.
George W. Bush said Monday that the Supreme Court's decision to throw out a
recent Florida court order that manual recounts of disputed ballots must be
included in the state's final tally of votes from the presidential election
was "comforting" and "a positive development." Aides were blunter, calling
it "a win for us."

But Vice President Al Gore's beleaguered campaign denied it was a defeat
for them.

Ron Klain, a Gore attorney and political adviser called the decision a
"neutral" development. "From our perspective, it is neither good news or bad
news, it is no news."

"I felt like the Supreme Court of the United States made a very strong
statement on our behalf," Bush told reporters in Texas. "The Supreme Court
acted in a away that I think was positive for our campaign."
On Capitol Hill, Democrats signaled willingness to continue backing Gore
politically in his legal challenges to Bush's certified win in Florida,
despite the high court's action, which some called a setback for the vice

But Republican lawmakers said the decision added weight to calls for Gore
to concede.

Acting following a historic hearing Friday, the Supreme Court Monday
unanimously ordered the Florida high court to explain why it extended the
deadline for certifying the result of the election in the state, and ordered
the inclusion of manually counted ballots in Florida's final vote tally. The
decision - which shaved Bush's lead in the state from 930 to 537 votes --
was opposed by Republicans, who appealed to the Supreme Court in Washington.

In their decision, Supreme Court justices indicated they did not have
enough information to rule whether the earlier state ruling violated federal
law or the U.S. Constitution.

Monday's unsigned "per curiam" decision they issued means the case is
being sent back to the Florida Supreme Court for a new hearing. Pending an
explanation, the justices set aside the Florida ruling.

Gore aides said the ruling was unlikely to impact their other legal
challenges to the Sunshine State presidential ballot tally. "All this means
is we're back at the Florida Supreme Court," Gore chief spokesman Chris
Lehane told United Press International.

But James A. Baker, III, former Secretary of State and the Bush campaign's
point man in Florida speaking to reporters at a press conference in
Tallahassee, called the decision a victory for Bush.

"This decision was unanimous," said Baker. "This decision vacated the
Florida Supreme Court ruling, and it did so on the basis of the reservations
that we have expressed about this decision in the past."

Gore's lead attorney in Florida, David Boies, said that the high court
ruling would not adversely affect the outcome of his challenge to the vote
totals. This case, which is currently before Leon County Circuit Judge N.
Sanders Sauls, could reverse Bush's narrow claim to Florida's crucial 25
Electoral College votes.

"I think the Supreme Court of the United States' opinion does not in
anyway effect the contest that is going on in front of judge Sauls," Boise
said, speaking to reporters in Tallahassee.

Judge Sauls is expected to rule later today on the Gore camp's challenge,
which seeks to have Florida's official tally ammended by a manual recount of
some 10,000 disputed, or so-called "dimpled", ballots previously counted by
machine and registering no vote for president.

Whichever side loses is expected to appeal to the Florida Supreme Court
immediately. However, the Gore campaign is hoping that if the decision goes
their way, Sauls will order an immediate start to the hand counting of the
disputed ballots - brought to Tallahassee last week from three counties in
the South of the state.

But Bush lawyer Barry Richard told United Press International that the
Supreme Court ruling means that Sauls cannot easily order an immediate
ballot recount, even if he finds in Gore's favor when he rules shortly on
the vice president's lawsuit,

"It's vacated the Florida Supreme Court decision," he said. "I think that
might well stop him from starting a recount of the ballots at this point."

Richard argued that by questioning the basis on which the Florida Supreme
Court had ordered manual recounts included in the state's final vote tally,
the high court had cast doubt on the legitimacy of the whole process to such
an extent that judge Sauls would have difficulty in ordering further such
hand counts.

"One of the arguments that I made (before Judge Sauls)," Richard said, "is
that Palm Beach County and Broward County did change the rules because they
haven't counted dimpled ballots in the past, and I argued that they
shouldn't here. The federal statute that the Supreme Court was dealing with
prohibits Broward and Palm Beach Counties from changing the rules and
counting those ballots."

Richard acknowledged that the Florida Supreme Court response to the U.S.
high court was also likely to impact Judge Sauls' decision.

"I think at the very least, judge Sauls will want to wait and see what the
Supreme Court (of Florida) is going to do now before he gets into ballot

Richard said it was "debatable" whether the U.S. Supreme Court decision
Monday would affect the state's certified vote count. Some Bush supporters
had argued that the decision - since it set aside the inclusion of manual
recounts - put Bush's lead in the state back up to 930 votes, though this is
still less than

"It's unclear at this point what the certified vote tally is, but that
doesn't matter," he told UPI, "because we have a slate of certified electors
from Florida and it doesn't really matter by what margin (bush won)."

For his part, Boise acknowledged that the U.S. Supreme Court's move adds
to an already confusing array of legal questions faced by Florida justices
trying to adjudicate election matters ahead of a Dec. 12 deadline for
Florida to pick its Electoral College electors.

"Obviously everything is tight," Boise said. "It may be one more issue for
the Florida Supreme Court to deal with."

Democrats on Capitol Hill were reviewing the high court's decision Monday.
Last week, some Democrats had said an adverse decision by the court against
Gore would eviscerate Gore's political support in his own party.

John Conyers, D-Mich., ranking minority member on the House Judiciary
Committee, called the decision by the U.S. Supreme Court, "inconclusive."

"For partisans on either side to declare victory as a result of this
opinion is wishful thinking, at best," Conyers said.

Other Gore supporters agreed that the U.S. Supreme Court decision would
not affect the backing the vice president was getting from lawmakers.

Asked by United Press International in Tallahassee whether he was worried,
Ron Klain, a Gore attorney and political adviser said: "No. Absolutely not.
They (congressional democrats) support counting every vote and do not look
at this as a damaging blow."

Some Republicans on Capitol Hill said the decision could sound a death
knell for Gore's legal challenge.

Republican Sen. Arlen Specter of Pennsylvania said the decision represents
another time-consuming road block that is "hard to imagine" Gore could
overcome before the Dec. 12 deadline for Florida to decide the fate of its
25 electoral votes.

"I would say that within the context of this decision by the U.S. Supreme
court . . . Vice President Gore may want to reconsider his position on
continuing the challenge," Specter said.

Other Republicans called for Gore to give up now. "In view of this ruling
by the highest court in the land, I again call on Vice President Al Gore to
concede graciously and drop all plans for dragging this out any longer,"
House Republican Conference Chairman J.S. Watts from Oklahoma said.

Specter also said that the Florida state legislature may soon move to send
the 25 electoral votes to Bush anyway.
(Prothero reported from Tallahassee, Shaun Waterman contributed from
Washington DC)

Copyright 2000 by United Press International.
All rights reserved.

WITH THE DEADLINE just a week away for Florida to appoint the 25 electors who will determine the presidency, time was becoming a critical factor for the vice president. His aides pleaded with Democrats to stick with him a few more days while his lawyers took another run at Florida’s highest court, where they have said all along the election would be decided.
“The Florida Supreme Court ... [is] the final word on these issues,” said Mark Fabiani, a spokesman for Gore.
The U.S. Supreme Court weighed in first Monday morning. It told the Florida Supreme Court to reconsider its decision ordering the state to include presidential ballots manually recounted after Nov. 14, the deadline Florida’s secretary of state said was mandated by state law.
The justices did not rule directly on Bush’s demand that the recounts be voided, but the effect of the unsigned order was to wipe out recounted votes that had cut Texas Gov. George W. Bush’s certified lead in Florida almost in half.
The Florida court said it would reconsider the case and ordered lawyers for both candidates to file their briefs by 3 p.m. ET Tuesday.

The second ruling, delivered later Monday in a state circuit courtroom in Tallahassee, was seen as a crushing defeat even by Gore’s legal team.

The Presidential Election and Other Cool Facts
No Ordinary Time by Doris Kearns Goodwin
Other books by Doris Kearns Goodwin

Florida Circuit Judge N. Sanders Sauls rejected the vice president’s request for hand recounts of almost 14,000 disputed ballots. “There is no credible statistical evidence ... that the results of the election would have been changed,” Sauls said in rejecting every argument Gore’s lawyers had made in a marathon hearing over the weekend.
Gore’s lawyers immediately turned to a state appeals court, which sent the case directly to the state Supreme Court.
Laurence Tribe, Gore’s attorney before the U.S. Supreme Court, saw Sauls’ ruling as an enormous blow. “This is obviously a terrible disappointment,” Tribe told MSNBC’s Lester Holt.
Gore’s lead attorney in Florida, David Boies, indicated that the state court is Gore’s last hope and that the campaign would accept its judgment as the final word.
“They won. We lost. We’re appealing. ... This is going to be resolved by the Florida Supreme Court promptly, and what I think is that that will be the end of the matter,” Boies said.
“Whoever wins in the Supreme Court of Florida, we’ll accept that.”

The comprehensiveness of Sauls’ ruling left Bush’s advisers and lawyers jubilant.

December 4 — Bush spokeswoman Karen Hughes says ’Americans will be comforted’ by the judge’s ruling.

“Governor Bush and Secretary [Dick] Cheney won the election,” Karen Hughes, Bush’s communications director, told reporters in Austin, Texas.
Benjamin Ginsberg, Bush’s chief legal counsel in Florida, agreed that “Governor Bush and Secretary Cheney have won Florida,” and he again called on Gore to concede the election. “It’s time for everyone to do what’s in the best interest of the country,” he said.
Hughes would not go that far, saying, “It would not be appropriate for me to give the vice president advice.”

Anticipating an unfavorable verdict, the Gore campaign worked feverishly ahead of time to keep congressional Democrats from peeling off and abandoning the vice president.
Gore’s running mate, Sen. Joseph Lieberman, and his campaign manager, William Daley, called Democrats on Capitol Hill to explain the whirlwind legal developments and urge them to remain steadfast.

NBC News correspondent Chip Reid reported from Washington that Gore’s aides believed they had managed to hold congressional Democrats’ support, at least for now.
House Minority Leader Dick Gephardt, D-Mo., and Senate Minority Leader Thomas Daschle, D-S.D., said in a joint statement that “we are united in our support of the decision to appeal.”
Most important is the support of conservative Democrats in Congress. NBC News’ Mike Viqueira reported that the so-called Blue Dog Democrats, many of whom have come under heavy pressure from voters in their districts to urge Gore to concede, were holding firm Monday.
Rep. Jim Turner, D-Texas, said: “We waited four weeks. We can wait three or four more days.”
Text of Judge Sauls' ruling

But no one denied that Sauls’ ruling cut into the heart of Gore’s challenge to the Nov. 7 election results.
Sauls said there was no evidence that 14,000 “undervotes” — ballots that recorded no vote for president — affected the outcome of the race, which Florida declared that Bush won by 537 votes.

December 4 — Gore attorney David Boies says the Florida judge should have looked at the disputed ballots for himself.

“In order to contest election results ... the plaintiff must show that, but for the irregularity or inaccuracy claimed, the result of the election would have been different,” Sauls said in reading his ruling from the bench.
Gore failed to prove that, Sauls said.
Sauls said further that there was “no authority under Florida law” to certify an incomplete manual recount or submit returns after a deadline fixed by the state Supreme Court, a vindication of Secretary of State Katherine Harris, who certified Bush as the winner last month.
Sauls also said that while the record shows “voter error and/or less than total accuracy in regard” to the results in Palm Beach and Miami-Dade counties, those problems “cannot support or affect any recounting.”
Boies criticized Sauls’ reading of the law and said the judge should have looked at some of the disputed ballots for himself before deciding they were irrelevant.
“One of the points we will make on appeal is that ... in an election contest you can’t resolve that contest without actually looking at the ballots,” he said.
But George Terwilliger, an attorney for Bush, predicted Boies would lose again, calling Sauls’ findings “quite remarkable in terms of how sweeping they are.”
“The whole country sees we shouldn’t be deciding the presidency based on some dimples on a punch card,” Terwilliger said in an interview on MSNBC.


December 4 — The U.S. Supreme Court’s judgment wasn’t an open and shut case. NBC’s Pete Williams reports.

Sauls’ ruling added significantly to the difficulty of Gore’s task, which had already been burdened earlier in the day when the U.S. Supreme Court weighed in on the disputed election for the first time.
Acting with unusual haste, the nine justices said “there is sufficient reason for us to decline at this time to review” the Florida Supreme Court’s order last month that allowed counties to complete hand recounts. In the meantime, it vacated the Florida court’s ruling.
In their unsigned opinion, the Supreme Court justices indicated that the state court did not make it clear whether it based its decision on the state Constitution or on state election laws — a key distinction that could justify federal intervention.
Depending on how it is interpreted, Monday’s opinion could widen Bush’s advantage in Florida from 537 to 930 votes by eliminating the results of hand recounts completed after the Nov. 14 certification deadline. But Boies said such an adjustment would depend on what the state Supreme Court does when it revisits the case.
Text of U.S. Supreme Court's opinion

As the election dispute barrels toward a conclusion of some sort, action continued on several fronts:
Bush forged ahead with planning for a new government, preparing to receive his first intelligence briefing Tuesday morning from the CIA.

December 4 — George W. Bush says he is ’very pleased’ by the U.S. Supreme Court’s ruling.

“I do believe I have won this election,” he declared.
A federal judge in Pensacola will hear arguments in a Republican effort to pad Bush’s margin by counting ballots from abroad that were rejected for lack of a postmark and other problems, most of them from military voters.
A lawyer for Democratic voters in Seminole County said 200 absentee ballot request forms to be used as evidence in a lawsuit challenging absentee ballots are missing.
A Florida circuit judge ordered 10 counties to provide absentee ballot records in response to a separate Democratic challenge to 1,500 absentee votes filed by members of the military. Gov. Jeb Bush filed papers Monday to move the case to federal court.
The federal appeals court in Atlanta will hear oral arguments Tuesday in a pair of related cases from Bush supporters who want the court to throw out any election results that included hand recounts.
Gore’s campaign began a new fund-raising effort Monday, posting on its Web site a plea for more money.’s Alex Johnson and Mike Brunker, MSNBC’s Lester Holt and NBC News’ Mike Viqueira contributed to this report.

Florida high court "no schedule" for response to U.S. Supreme Cou rt
Monday, 4 December 2000 16:04 (ET)

Florida high court "no schedule" for response to U.S. Supreme Court

TALLAHASSEE, Fla., Dec. 4 (UPI) -- The Florida high court said Monday that
it had yet to set a timetable for responding to a request from the U.S.
Supreme Court that it clarify its ruling on hand recounts in the dispute
over the outcome of the presidential election.

Court spokesman Craig Waters told reporters gathered outside the Florida
Supreme Court that the clerk's office had received confirmation that one of
its opinions had been reversed by the high court on Washington shortly
before noon.

"The court now has the matter under advisement and will determine how it
will proceed," Waters said. "I will let you all know when the court makes
further decisions regarding scheduling or similar matters."

He said that the justices of the Florida court would be meeting later
Monday to determine how they would respond. Responding to questions, he said
that a request for additional briefs from the parties, and one or more
hearings for further oral arguments were both possibilities, but added "we
just don't know at this point."
Copyright 2000 by United Press International.
All rights reserved.