On Mar 31, 6:24 pm, (Doug Miller) wrote:
In article .com, wrote:
On Mar 31, 1:45 pm, (Doug Miller) wrote:
In article . com,
wrote:

The FLSC was trying to rewrite Florida law to conform
to the 14th amendment. The USSC concurred 7 - 2
that the Florida election as it then stood did not meet
the equal protection requirements of the Constitution.

That's absolute nonsense; in fact, it's the exact *opposite* of what
happened.

Nonsense.

Perhaps you ought to trouble yourself to actually *read* the SCOTUS decisions;
it's clear that you have not.


As usual, it appears that you have not.

SUPREME COURT OF THE UNITED STATES

GEORGE W. BUSH, et al., PETITIONERS v.
ALBERT GORE, Jr., et al.
ON WRIT OF CERTIORARI TO THE FLORIDA SUPREME COURT
[December 12, 2000]
Per Curiam.

I

On December 8, 2000, the Supreme Court of Florida ordered that the
Circuit Court of Leon County tabulate by hand 9,000 ballots in Miami-
Dade County. It also ordered the inclusion in the certified vote
totals of 215 votes identified in Palm Beach County and 168 votes
identified in Miami-Dade County for Vice President Albert Gore, Jr.,
and Senator Joseph Lieberman, Democratic Candidates for President and
Vice President. The Supreme Court noted that petitioner, Governor
George W. Bush asserted that the net gain for Vice President Gore in
Palm Beach County was 176 votes, and directed the Circuit Court to
resolve that dispute on remand. ___ So. 2d, at ___ (slip op., at 4, n.
6). The court further held that relief would require manual recounts
in all Florida counties where so-called "undervotes" had not been
subject to manual tabulation. The court ordered all manual recounts to
begin at once. Governor Bush and Richard Cheney, Republican Candidates
for the Presidency and Vice Presidency, filed an emergency application
for a stay of this mandate. On December 9, we granted the application,
treated the application as a petition for a writ of certiorari, and
granted certiorari. Post, p. ___.

The proceedings leading to the present controversy are discussed
in some detail in our opinion in Bush v. Palm Beach County Canvassing
Bd., ante, p. ____ (per curiam) (Bush I). On November 8, 2000, the day
following the Presidential election, the Florida Division of Elections
reported that petitioner, Governor Bush, had received 2,909,135 votes,
and respondent, Vice President Gore, had received 2,907,351 votes, a
margin of 1,784 for Governor Bush. Because Governor Bush's margin of
victory was less than "one-half of a percent . . . of the votes cast,"
an automatic machine recount was conducted under §102.141(4) of the
election code, the results of which showed Governor Bush still winning
the race but by a diminished margin. Vice President Gore then sought
manual recounts in Volusia, Palm Beach, Broward, and Miami-Dade
Counties, pursuant to Florida's election protest provisions. Fla.
Stat. §102.166 (2000). A dispute arose concerning the deadline for
local county canvassing boards to submit their returns to the
Secretary of State (Secretary). The Secretary declined to waive the
November 14 deadline imposed by statute. §§102.111, 102.112. The
Florida Supreme Court, however, set the deadline at November 26. We
granted certiorari and vacated the Florida Supreme Court's decision,
finding considerable uncertainty as to the grounds on which it was
based. Bush I, ante, at ___-___ (slip. op., at 6-7). On December 11,
the Florida Supreme Court issued a decision on remand reinstating that
date. ___ So. 2d ___, ___ (slip op. at 30-31).

On November 26, the Florida Elections Canvassing Commission
certified the results of the election and declared Governor Bush the
winner of Florida's 25 electoral votes. On November 27, Vice President
Gore, pursuant to Florida's contest provisions, filed a complaint in
Leon County Circuit Court contesting the certification. Fla. Stat.
§102.168 (2000). He sought relief pursuant to §102.168(3)(c), which
provides that "[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" shall be grounds for a contest. The Circuit
Court denied relief, stating that Vice President Gore failed to meet
his burden of proof. He appealed to the First District Court of
Appeal, which certified the matter to the Florida Supreme Court.

Accepting jurisdiction, the Florida Supreme Court affirmed in part
and reversed in part. Gore v. Harris, ___ So. 2d. ____ (2000). The
court held that the Circuit Court had been correct to reject Vice
President Gore's challenge to the results certified in Nassau County
and his challenge to the Palm Beach County Canvassing Board's
determination that 3,300 ballots cast in that county were not, in the
statutory phrase, "legal votes."

The Supreme Court held that Vice President Gore had satisfied his
burden of proof under §102.168(3)(c) with respect to his challenge to
Miami-Dade County's failure to tabulate, by manual count, 9,000
ballots on which the machines had failed to detect a vote for
President ("undervotes"). ___ So. 2d., at ___ (slip. op., at 22-23).
Noting the closeness of the election, the Court explained that "[o]n
this record, there can be no question that there are legal votes
within the 9,000 uncounted votes sufficient to place the results of
this election in doubt." Id., at ___ (slip. op., at 35). A "legal
vote," as determined by the Supreme Court, is "one in which there is a
'clear indication of the intent of the voter. ' " Id., at ____ (slip
op., at 25). The court therefore ordered a hand recount of the 9,000
ballots in Miami-Dade County. Observing that the contest provisions
vest broad discretion in the circuit judge to "provide any relief
appropriate under such circumstances," Fla. Stat. §102.168(8) (2000),
the Supreme Court further held that the Circuit Court could order "the
Supervisor of Elections and the Canvassing Boards, as well as the
necessary public officials, in all counties that have not conducted a
manual recount or tabulation of the undervotes ... to do so forthwith,
said tabulation to take place in the individual counties where the
ballots are located." ____ So. 2d, at ____ (slip. op., at 38).

The Supreme Court also determined that both Palm Beach County and
Miami-Dade County, in their earlier manual recounts, had identified a
net gain of 215 and 168 legal votes for Vice President Gore. Id., at
___ (slip. op., at 33-34). Rejecting the Circuit Court's conclusion
that Palm Beach County lacked the authority to include the 215 net
votes submitted past the November 26 deadline, the Supreme Court
explained that the deadline was not intended to exclude votes
identified after that date through ongoing manual recounts. As to
Miami-Dade County, the Court concluded that although the 168 votes
identified were the result of a partial recount, they were "legal
votes [that] could change the outcome of the election." Id., at (slip
op., at 34). The Supreme Court therefore directed the Circuit Court to
include those totals in the certified results, subject to resolution
of the actual vote total from the Miami-Dade partial recount.

The petition presents the following questions: whether the Florida
Supreme Court established new standards for resolving Presidential
election contests, thereby violating Art. II, §1, cl. 2, of the United
States Constitution and failing to comply with 3 U.S.C. § 5 and
whether the use of standardless manual recounts violates the Equal
Protection and Due Process Clauses. With respect to the equal
protection question, we find a violation of the Equal Protection
Clause.

II

A

The closeness of this election, and the multitude of legal
challenges which have followed in its wake, have brought into sharp
focus a common, if heretofore unnoticed, phenomenon. Nationwide
statistics reveal that an estimated 2% of ballots cast do not register
a vote for President for whatever reason, including deliberately
choosing no candidate at all or some voter error, such as voting for
two candidates or insufficiently marking a ballot. See Ho, More Than
2M Ballots Uncounted, AP Online (Nov. 28, 2000); Kelley, Balloting
Problems Not Rare But Only In A Very Close Election Do Mistakes And
Mismarking Make A Difference, Omaha World-Herald (Nov. 15, 2000). In
certifying election results, the votes eligible for inclusion in the
certification are the votes meeting the properly established legal
requirements.

This case has shown that punch card balloting machines can produce
an unfortunate number of ballots which are not punched in a clean,
complete way by the voter. After the current counting, it is likely
legislative bodies nationwide will examine ways to improve the
mechanisms and machinery for voting.

B

The individual citizen has no federal constitutional right to vote
for electors for the President of the United States unless and until
the state legislature chooses a statewide election as the means to
implement its power to appoint members of the Electoral College. U.S.
Const., Art. II, §1. This is the source for the statement in McPherson
v. Blacker, 146 U.S. 1, 35 (1892), that the State legislature's power
to select the manner for appointing electors is plenary; it may, if it
so chooses, select the electors itself, which indeed was the manner
used by State legislatures in several States for many years after the
Framing of our Constitution. Id., at 28-33. History has now favored
the voter, and in each of the several States the citizens themselves
vote for Presidential electors. When the state legislature vests the
right to vote for President in its people, the right to vote as the
legislature has prescribed is fundamental; and one source of its
fundamental nature lies in the equal weight accorded to each vote and
the equal dignity owed to each voter. The State, of course, after
granting the franchise in the special context of Article II, can take
back the power to appoint electors. See id., at 35 ("[T]here is no
doubt of the right of the legislature to resume the power at any time,
for it can neither be taken away nor abdicated") (quoting S. Rep. No.
395, 43d Cong., 1st Sess.).

The right to vote is protected in more than the initial allocation
of the franchise. Equal protection applies as well to the manner of
its exercise. Having once granted the right to vote on equal terms,
the State may not, by later arbitrary and disparate treatment, value
one person's vote over that of another. See, e.g., Harper v. Virginia
Bd. of Elections, 383 U.S. 663, 665 (1966) ("[O]nce the franchise is
granted to the electorate, lines may not be drawn which are
inconsistent with the Equal Protection Clause of the Fourteenth
Amendment"). It must be remembered that "the right of suffrage can be
denied by a debasement or dilution of the weight of a citizen's vote
just as effectively as by wholly prohibiting the free exercise of the
franchise." Reynolds v. Sims, 377 U.S. 533, 555 (1964).

There is no difference between the two sides of the present
controversy on these basic propositions. Respondents say that the very
purpose of vindicating the right to vote justifies the recount
procedures now at issue. The question before us, however, is whether
the recount procedures the Florida Supreme Court has adopted are
consistent with its obligation to avoid arbitrary and disparate
treatment of the members of its electorate.

Much of the controversy seems to revolve around ballot cards
designed to be perforated by a stylus but which, either through error
or deliberate omission, have not been perforated with sufficient
precision for a machine to count them. In some cases a piece of the
card-a chad-is hanging, say by two corners. In other cases there is no
separation at all, just an indentation.

The Florida Supreme Court has ordered that the intent of the voter
be discerned from such ballots. For purposes of resolving the equal
protection challenge, it is not necessary to decide whether the
Florida Supreme Court had the authority under the legislative scheme
for resolving election disputes to define what a legal vote is and to
mandate a manual recount implementing that definition. The recount
mechanisms implemented in response to the decisions of the Florida
Supreme Court do not satisfy the minimum requirement for non-arbitrary
treatment of voters necessary to secure the fundamental right.
Florida's basic command for the count of legally cast votes is to
consider the "intent of the voter." Gore v. Harris, ___ So. 2d, at ___
(slip op., at 39). This is unobjectionable as an abstract proposition
and a starting principle. The problem inheres in the absence of
specific standards to ensure its equal application. The formulation of
uniform rules to determine intent based on these recurring
circumstances is practicable and, we conclude, necessary.

The law does not refrain from searching for the intent of the
actor in a multitude of circumstances; and in some cases the general
command to ascertain intent is not susceptible to much further
refinement. In this instance, however, the question is not whether to
believe a witness but how to interpret the marks or holes or scratches
on an inanimate object, a piece of cardboard or paper which, it is
said, might not have registered as a vote during the machine count.
The factfinder confronts a thing, not a person. The search for intent
can be confined by specific rules designed to ensure uniform
treatment.

The want of those rules here has led to unequal evaluation of
ballots in various respects. See Gore v. Harris, ___ So. 2d, at ___
(slip op., at 51) (Wells, J., dissenting) ("Should a county canvassing
board count or not count a 'dimpled chad' where the voter is able to
successfully dislodge the chad in every other contest on that ballot?
Here, the county canvassing boards disagree"). 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. 3 Tr. 497, 499 (Dec. 3, 2000). 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 1990 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 1990 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, 372 U.S. 368 (1963). The Court
found a constitutional violation. We relied on these principles in the
context of the Presidential selection process in Moore v. Ogilvie, 394
U.S. 814 (1969), where we invalidated a county-based procedure that
diluted the influence of citizens in larger counties in the nominating
process. 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." Id., at 819.

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 110,000 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. 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 respondent's 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. 2d, at ____, n. 21 (slip op., at 37, n. 21) (noting
"practical difficulties" may control outcome of election, but
certifying partial Miami-Dade total nonetheless). This accommodation
no doubt results from the truncated contest period established by the
Florida Supreme Court in Bush I, 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 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. 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 State has not shown that its procedures include the
necessary safeguards. The problem, for instance, of the estimated
110,000 overvotes has not been addressed, although Chief Justice Wells
called attention to the concern in his dissenting opinion. See ____
So. 2d, at ____, n. 26 (slip op., at 45, n. 26).

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 of State
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 of State, as required by Fla. Stat. §101.015 (2000).

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.S.C. § 5. ___ So. 2d, at ___
(slip op. at 27); see also Palm Beach Canvassing Bd. v. Harris, 2000
WL 1725434, *13 (Fla. 2000). 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 12. 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. See post, at 6 (Souter, J., dissenting); post, at 2,
15 (Breyer, J., dissenting). 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.S.C. §
5 Justice Breyer's proposed remedy-remanding to the Florida Supreme
Court for its ordering of a constitutionally proper contest until
December 18-contemplates action in violation of the Florida election
code, and hence could not be part of an "appropriate" order authorized
by Fla. Stat. §102.168(8) (2000).

* * *

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 45.2, the Clerk is directed to issue
the mandate in this case forthwith.

It is so ordered.

---------------------------------------------------------------------------------

See? Seven Justices concurred that
the manner in which the counting was
being done violated the 14th amendment.

That is what I said.

The USSC did not hold that recounting the
votes was a violation of the law. as you said.

Ironically the court observed that:

"The press of time does not diminish the
constitutional concern. A desire for speed
is not a general excuse for ignoring equal
protection guarantees."

but ruled:

"That (Florida) statute, in turn, requires
that any controversy or contest ...
be completed by December 12. 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.

[Again, the procedure, not the counting per
se, was unconstitutional, FF]

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."


The essence of this ruling is that the state
law requiring that the electors cast their
votes on the day mandated by the Congress
trumps the equal protection clause of the
14th amendment.

This is particularly bizarre when you
consider that the Constitution neither
requires that Congress accept votes cast
on the 'safe harbor date' nor prohibits it
from accepting votes cast thereafter.
Indeed, the Congress has done both.
Yet the USSC held that meeting that
arbitrary deadline was more important
than accurately counting the votes!


Thus George W Bush became the first
man to sue his way into the Presidency,
though an accurate and timely counting
of the votes, which he successfully sued to
prevent, would have had the same effect
but with considerably less controversy.

--

FF