Governor Bush and Richard Cheney requested to the court for a stay of the Supreme Court of Florida’s mandate– the Circuit Court of Leon County tabulate by hand 9000 ballots in Miami-Dade County and all Florida counties do manual counts where undervotes had not been subject to manual tabulation. The Circuit Court denied the Governors’ application. The Supreme Court granted certiorari.
Where a State accords arbitrary and disparate treatment to voters in its different counties, that violates the Equal Protection Clause of the voters.
On December 8, 2000, the Supreme Court of Florida ordered that the Circuit Court of Leon County tabulate by hand 9000 ballots in Miami-Dade County. The Supreme Court also required manual counts in all Florida counties where undervotes had not been subject to manual tabulation because of the dispute and allegation that the 9000 uncounted votes were sufficient to place the results of the election in doubt. Governor Bush and Richard Cheney filed an application for a stay of this mandate to the Supreme Court. The Supreme Court granted certiorari.
Justice Stevens: The failure of the Florida’s Supreme Court to specify the precise manner in which the intent of the voter is to be determined does not rise to the level of a constitutional violation. Such violation occurs only when individual votes within the same State were weighted unequally, but that is not what has happened in Florida.
Justice Souter: The statute does not define a legal vote. Thus, it is on the State Supreme Court’s hand to define it and the Florida Supreme Court’s adoption of voter’s intent does not violate the Constitution. Article II, which deals with the election process and procedure, is unconcerned with mere disagreements about interpretive merits.
Justice Breyer: While the majority’s concern on the absence of a uniform, specific standard to guide the recounts has nothing to do with principles of fundamental fairness. The majority’s remedy, which is to reverse the lower court and stop the recount entirely is not justified and the appropriate remedy would be to remand this case with instructions that would allow the Florida Supreme Court to require recounting all under-counted votes in Florida, whether or not previously recounted prior to the end of the protest period.
The Florida Supreme Court’s interpretation of legal vote and its decision to order a recount departed from the legislative scheme because Florida law cannot be reasonably thought to require the recounting of improperly marked ballots. Moreover, the power to make new election law rests on the state legislature, not the state court.
The lack of rules for determining voter’s intent leads to unequal evaluation of ballots from county to county and even within a single county from one recount team to another. The evidence has shown that some members of the county applied different standards in defining a legal vote. Also, 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. This results from the truncated contest period established by the Florida Supreme Court. A desire for speed is not a general excuse for ignoring equal protection guarantees. Furthermore, the Florida’s Supreme Court did not specify who would recount the ballots, which forced the county boards to create ad hoc teams who had no previous training in handling ballots. The recount process is inconsistent with the minimum procedures necessary to protect the fundamental right of each voter under the authority of a single judicial officer. Thus, the recount process was being conducted in an unconstitutional manner.