Brief Fact Summary.
Plaintiff filed an emergency application for a stay to the Florida Supreme Court’s mandate that there had to be a manual recount of votes, alleging that the differing standards used to recount the votes in each county created a violation of the Fourteenth Amendment.
Synopsis of Rule of Law.
In the event of a contested presidential election, the Equal Protection Clause requires states conducting a manual recount of votes to issue uniform rules governing the recount to determine the intent of the voters and give equal weight to each vote.
The United States presidential election of 2000 between George W. Bush (Plaintiff) and Albert Gore (Defendant) was one of the closest in American history. After it was clear that Defendant won the popular vote, the outcome turned on the State of Florida and its twenty-five electoral votes to determine the outcome of the electoral vote. After the national deadline for counting votes passed with no clear winner of the Florida electoral vote announced, Defendant relied on a Florida statute and requested a manual recount of the votes from a Florida state trial court. The statute provided for “contest” of election results when there was “receipt 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.” The trial court held that Defendant failed to prove a “reasonable probability” that the election would have turned out differently if not for problems counting ballots. The Supreme Court of Florida reversed, however, noting that the trial court used the wrong standard in requiring Defendant to demonstrate a “reasonable probability” that the election would have been decided differently. Instead, the Florida Supreme Court said that the statute required only a showing of “receipt 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.” The court held that Defendant met this standard and ordered a manual recount of votes which included a net gain of legal votes for Defendant identified by Palm Beach County and Miami-Dade County in earlier manual recounts following the election. Shortly after the recount began, Plaintiff requested that the United States Supreme Court grant a stay of the recount and grant certiorari to consider the case. The Supreme Court granted a stay and certiorari.
Whether the use of standardless manual recounts of votes violates the Equal Protection Clause of the Fourteenth Amendment.
Yes. The Florida Supreme Court’s ruling that a recount must occur by December 12, 2000 is reversed and the case is remanded for consideration by the Florida legislature of proper standards governing any possible recount. In the event of a contested presidential election, the Equal Protection Clause requires states conducting a manual recount of votes to issue uniform rules governing the recount to determine the intent of the voters and give equal weight to each vote
It is fully within the power of the Florida Supreme Court to enact a new system of recounting ballots that takes into account the intent of the voter. Such a standard is not so vague and arbitrary as to amount to a constitutional violation of the Equal Protection Clause. Concerns over the accuracy of the recount are addressed by the requirement that an impartial magistrate adjudicate all objections arising from the recount process. The majority’s decision to terminate the recount risks disenfranchising an unknown number of voters whose ballots revealed their intent but were still rejected by the balloting machines.
The first issue is whether the Florida Supreme Court’s interpretation of the statute providing for a contest of the state election results violates 3 U.S.C. §5. While §5 provides a “safe harbor” for state laws enacted before the election, no state is constitutionally required to comply with §5 if it cannot do so. Thus, the Florida Supreme Court did not act unconstitutionally in issuing a new electoral standard when the state as a whole was unable to comply with §5. The second issue is whether the Florida Supreme Court’s construction of the state statutory provisions governing contests impermissibly changes a state law in violation of Article II, § 1, cl. 2 of the Constitution. On this issue, the actions of the Florida Supreme Court did not substantially change the electoral scheme contemplated by the Florida legislature. The Florida Supreme Court engaged in permissible statutory construction in determining that Defendant instituted a contest authorized by the state statute. Additionally, the Florida Supreme Court correctly directed the trial judge to deal with that contest based on the discretionary powers given to it under the Florida Constitution. Thus, none of the Florida Supreme Court’s actions violate Article II of the Constitution. The third and final issue is whether the manner of interpreting markings on disputed ballots violates the Equal Protection or Due Process Clauses of the Constitution. The Florida Supreme Court’s method for counting ballots treats identical ballots differently for a non-arbitrary state purpose. However, electoral votes were due to be cast in six days. The Florida legislature did not have time to properly announce new standards governing a recount. The case should be remanded for additional consideration of new standards by the Florida State Supreme Court, as this would produce the desired result in a more efficient time frame.
The Florida Supreme Court announced a reasonable and accurate interpretation of Florida state law. Rarely has the Supreme Court rejected outright an interpretation of state law by a state court as it did in the present case. The Florida Supreme Court’s interpretation of its own electoral law is entitled to deference. Additionally, Plaintiff has not presented a substantial Equal Protection Clause claim. There is no evidence suggesting the new recount adopted by the Florida court would yield a result any less fair or precise than the certification that preceded the recount. The Florida Supreme Court’s guidelines for a new recount are constitutional and its decision should be affirmed.
The majority raises three possible Equal Protection Clause violations in its opinion: 1) the failure to include all “overvotes” in the manual recount; 2) the fact that all ballots, rather than simply the “undervotes,” were recounted in some, but not all, counties; and 3) the absence of a uniform, specific standard to guide the recounts. For the first two issues, Plaintiff presents no evidence that a manual recount of votes would identify additional legal votes. The third issue does raise Equal Protection Clause concerns in that the Florida Supreme Court failed to issue uniform standards for governing the recount. However, despite these concerns, the majority’s decision to stop the recount is unjustifiable. The majority reached this decision without any record evidence that the recount could not be completed in the time allowed by the Florida Supreme Court. Halting the manual recount ensures that the uncounted legal votes will not be counted under a new standard. Additionally, regardless of the national importance of the election, the Supreme Court is not required to hear this case. Even on the Equal Protection claim, the majority argues that Plaintiff sought relief for the constitutional protection of the right to vote based on state (not federal) law. Thus the case should have been resolved by the Florida Supreme Court based on an interpretation of state law.
The majority’s opinion is correct, but additional grounds exist for invalidating the Florida Supreme Court’s decision. The federal “safe harbor” provision in 3 U.S.C. §5 for decisions governing the selection of electors provides that a state’s selection of electors is conclusive and governs the counting of electoral votes if the electors are chosen under state laws enacted prior to election day, and if the selection process is complete six days prior to the meeting of the Electoral College. However, the Florida Supreme Court announced its decision that electors would be chosen subject to de novo review of ballots well after the election. In doing so, the court attempted to circumvent the safe harbor provision protecting the prior system of choosing state electors by imposing a completely new system. The Florida Supreme Court accorded no weight to the state secretary’s rejection of ballots recounted and submitted past the deadline for certifying results, and thus virtually eliminated both the deadline itself and the secretary’s discretion to disregard recounts violating it. In examining the statutory scheme enacted by the Florida legislature for choosing electors, it is evident that the legislature intended to take advantage of the safe harbor provision in 3 U.S.C. §5. Given all these factors, the remedy issued by the Florida Supreme Court violates the statutory framework in place on election day and the federal safe harbor provision.
An individual citizen has no federal constitutional right to vote for electors for President of the United States, unless and until the state legislature chooses a statewide election as a means to implement its power to appoint members of the Electoral College. However, if a state holds such an election, the right to vote is fundamental and equal weight must be accorded to each vote. Ensuring equality of votes extends beyond just making the right to vote available. Equality can be compromised if the voting process accords more weight to certain votes over others. The present dispute over the counting of votes is driven by the process of voting with a balloting machine, which are designed to record votes through the perforation of a ballot card by a stylus. However, in some cases, a piece of the card was left hanging or merely indented rather than completely perforated. The Florida Supreme Court, in issuing its ruling for a manual recount, directed that such ballots be examined to determine the intent of the voter. This ruling is abstract and standardless and does not satisfy the minimum requirements for non-arbitrary treatment of voters necessary to secure the fundamental right of voting. The formulation of uniform rules to determine intent based on these recurring circumstances is both practicable and necessary. Otherwise, different standards will be applied throughout the recount for determining whether a vote was cast, resulting in impermissible inequality of treatment of votes.