OFFICIAL TEXT OF SUPREME COURT RULING - December 4, 2000

(Slip Opinion) Cite as: 531 U. S. ____ (2000) 1

Per Curiam

NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES

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No. 00–836

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GEORGE W. BUSH, PETITIONER v. PALM BEACH

COUNTY CANVASSING BOARD ET AL.

ON WRIT OF CERTIORARI TO THE FLORIDA SUPREME COURT

[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 dead-line

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 circum-stances.

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 ‘ unreason-able

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.

George W. Bush vs Florida Supreme Court
December 1, 2000

Transcript

IN THE SUPREME COURT OF THE UNITED STATES

GEORGE W. BUSH, Petitioner,
v. No. 00-836
PALM BEACH COUNTY CANVASSING BOARD, Respondent.

Washington, D.C.
Friday, December 1, 2000
The above-entitled matter came on for oral argument before the Supreme Court of the United States at 10:00 a.m.
APPEARANCES:
THEODORE B. OLSON, ESQ., Washington, D.C.; on behalf of the Petitioner.
JOSEPH P. KLOCK, JR., ESQ., Miami, Florida; on behalf of Respondents Katherine Harris, et al., in support of Petitioner.
PAUL F. HANCOCK, ESQ., Tallahassee, Florida; on behalf of Respondent Robert A. Butterworth. LAURENCE H. TRIBE, ESQ., Cambridge, Massachusetts; on behalf of Respondents Al Gore, Jr. and Florida Democratic Party.
P R O C E E D I N G S
[10:00 a.m.]
CHIEF JUSTICE REHNQUIST: We’ll hear argument this morning in number 00-836, George W. Bush vs. The Palm Beach County Canvassing Board. Mr. Olson.
ORAL ARGUMENT OF THEODORE B. OLSON
ON BEHALF OF PETITIONER

MR. OLSON: And may it please the Court: Two weeks after the November 7 presidential election, the Florida Supreme Court overturned and materially rewrote portions of the carefully formulated set of laws enacted by Florida’s legislature to govern the conduct of that election and the determination of controversies with respect to who prevailed on November 7th. These laws have been formulated by the Florida legislature pursuant to an express delegation of authority, to wit, by the United States Constitution. The election code that the Florida legislature developed conformed to Title 3, Section 5 of the United States Code. That provision invites states to devise rules in advance of an election, to govern the counting of votes and the settling of election controversy.

INQUIRY: Well, Mr. Olson, isn’t Section 5 sort of a safe harbor provision for states, and do you think that it gives some independent right of a candidate to overturn a Florida decision based on that section?
MR. OLSON: We do, Justice O’Connor. It is a safe harbor, but it’s more than that. And Section 5 of Title 3 needs to be construed in connection with the history that brought it forth-
INQUIRY: Yes. But I would have thought it was a section designed in the case of, some election contest ends up before the Congress, a factor that the Congress can look at in resolving such a dispute. I just don’t quite understand how it would be independently enforceable.
MR. OLSON: That’s why I’ve mentioned the context in which that section was adopted. In light of the extreme controversy that was faced by this country as a result of the 1876 election, and as this Court knows, that election was very close and led to controversy, contest, discord, Congress was very much concerned about the possibility of that happening again, and one of the reasons—
INQUIRY: Yeah, but what they did was, and it’s typical of grant—in—aid programs, they said if you run a clean shop down there, we’ll give you a bonus, and if you don’t, well, you take your chances with everybody else. MR. OLSON: Justice Kennedy, I submit that it is much like a compact that Congress is offering in the form of Section 5, yes. If you do these things, certain things will happen. But among these things, what Congress wanted to accomplish with Section 5 was not only to provide the benefit to the states, but to provide the benefit to the United States of the states accepting that implicit proposal.
INQUIRY: But what is there in the opinion of the Supreme Court of Florida that indicates that it relied on this Federal statute in the reasoning for its decision and in its judgment?
MR. OLSON: Well, I think the fact is that it did not. What it did was it disregarded the compact. When the state adopted a code of ethics, or a code of election procedures to govern the election and the determination of disputes pursuant to the election, it brought itself into that safe harbor and guaranteed to the voters and the candidates in that state that the controversy and turmoil that infected this country after the 1876—
INQUIRY: Well, we are looking for a Federal issue, and I thought that you might have argued that the Secretary of State was instructed by the Supreme Court not to jeopardize the state’s chances and then cited 3 U.S.C. Sections 1 through 10. And so if the, if the state supreme court relied on a Federal issue or a Federal background principle and got it wrong, then you can be here.
MR. OLSON: Well, I certainly agree that it mentioned those provisions. I’m simply saying that it blew past the important provisions of Section 5 and the benefits that Section 5 gives to the states to the voters in that state and to the people running for office in that state. That is to say that if the rules are complied with, if disputes are resolved according to the rules that are set forth, then not only will the electors chosen by the voters in that state be given conclusive effect at the time they are counted by Congress but we will not have the controversy, dispute and chaos that’s been taking place in Florida.
INQUIRY: Mr. Olson, suppose a less, a less controversial Federal benefit scheme, let’s say the scheme that says states can get highway funds if, if they hold their highway speeds to a certain level, all right? And suppose you have a state supreme court that in your view unreasonably interprets a state statute as not holding highway speed to the level required in order to get the benefit of that safe harbor. Would you think that that raises a Federal question and that you could appeal the state court decision here because it deprived the state of the benefit of the highway funds?
MR. OLSON: No, I don’t think so.
INQUIRY: Why is this any different?
MR. OLSON: This is a great deal different because this is-first of all, Article II of the Constitution which vests authority to establish the rules exclusively in the legislatures of the state, tie in with Section 5. Secondly, as this Court has stated-
INQUIRY: Well, let’s just talk about Section 5. I mean, the constitutional question’s another one. Why is Section 5 in that regard any different from the highway funding?
MR. OLSON: I think it-I think it can’t be divorced from Article II of the Constitution because it’s a part of a plan for the vesting in the legislatures of a state, and Section 5 implements Article II in the sense that it provides a benefit not just to the state but to the voters.
INQUIRY: But just talk about the statutory issue. I assume that if we worked long enough with Justice Scalia’s hypothetical, we could find a case where a court adjudicated with reference to the Federal principle and got the Federal principle wrong. Did—Indiana vs. Brand and that kind of thing. Did that happen here?
MR. OLSON: Well, I think that the state did not pay, the state supreme court did not pay much attention to the Federal statute. It was obviously aware of it. It did get the Federal principle-
INQUIRY: Well, then there is no Federal constitutional issue here.
MR. OLSON: Well, there is a Federal-
INQUIRY: Pardon me, statutory issue.
MR. OLSON: Well, we believe that there is, Justice Kennedy, because although the state recognized it, it blew right past it. The state legislature adopted the code that the Section 5 of Article 3 of Title 3 invited it to do. The state supreme court, which had no right under the Constitution, but I can’t divorce the constitutional provision from Section 5, then overturned the plan that the state enacted through its legislature to make sure that what happened down in Florida was not going to happen. And so what the state supreme court did, knowing full well that these provisions existed, overturned the carefully enacted plan by Florida.
INQUIRY: Mr. Olson, do you think that Congress when it passed 3 U.S. Code, intended that there would be any judicial involvement? I mean, it seems to me it can just as easily be read as a direction to Congress, saying what we are going to do when these electoral votes are presented to us for counting.
MR. OLSON: I think that it was intend—directed to Congress, but it seems to me that in the context in which it was adopted and the promise that it afforded, that the conclusive effect would be given to the state selection of electors, that is a somewhat empty remedy and it doesn’t accomplish Congress’ objectives if it cannot be enforced when an agency of the state government steps in as the Florida Supreme Court did here and overturn the plan by which the Florida legislature carefully set forth a program so that disputes could be resolved, and we wouldn’t have the controversy, conflict and chaos that we submit exists today in Florida. INQUIRY: Mr. Olson, your—your submission is based on the premise that the Florida court overturned something that the statute did not. Is it not arguable, at least, that all they did was fill gaps that had not been addressed before?
MR. OLSON: Justice Stevens, I don’t think that in this case that’s even remotely arguable. What the state supreme court did is take a set of timetables, a set of provisions that—
INQUIRY: Yes. And the first one was the mandatory-is it your view still that the shall date controls in all respects?
MR. OLSON: No. Not necessarily. But the 102— there is the two provisions, Section 102.111 and 102.112. 111 contains the shall date, 102 contains the may date.
INQUIRY: Correct.
MR. OLSON: Both of those statutes, both of those provisions say that the returns must be, or shall be filed by a certain deadline. The shall and the may provisions simply relate to the possible remedy. We submit that under either interpretation the Secretary of State of Florida either must or shall ignore those returns, or may set those aside in her discretion.
INQUIRY: Does that mean if there were an act of God that prevented the returns from being filed that she would have discretion either to accept or reject the returns?
MR. OLSON: Yes, I believe—
INQUIRY: She would have the discretion?
MR. OLSON: Yes.
INQUIRY: Would she be compelled in that event to accept the returns?
MR. OLSON: I don’t think so. She took the position-
INQUIRY: She has the total discretion either to accept or reject?
MR. OLSON: That’s—
INQUIRY: Is there any circumstance in which she would be compelled to accept a late return?
MR. OLSON: I don’t know of any. I haven’t thought of any, Justice Stevens.
INQUIRY: Well, you are arguing in effect that it’s a mandatory deadline. I wonder if you really mean it’s mandatory.
MR. OLSON: Well, the problem is that it’s- what we are saying is that either it’s mandatory, in which case she could not accept them.
INQUIRY: But you don’t know whether it’s mandatory or not?
MR. OLSON: Well, the Florida Supreme Court and what the circuit court did in that case, it said that it wasn’t—and we’ll accept this for purposes of this argument that it wasn’t—
INQUIRY: Yes, but one of the things that’s of interest to me is the extent to which you say there was a change in the law. It seems to me that in order to answer that question you have to know what your view of the law was before this all happened.
MR. OLSON: I think that we can answer that this way, is that whether it was shall ignore or may ignore. It was not must accept.
INQUIRY: Under any circumstance it was not must?
MR. OLSON: No, under no circumstances was it must accept. Now—
INQUIRY: Even in an act of God or fraud?
MR. OLSON: I don’t believe so, Justice Stevens.
INQUIRY: Okay.
INQUIRY: Mr. —
INQUIRY: Isn’t the law in Florida like as in most states, and in the Federal government, that when an official has discretion, may accept or may not accept, that has to be exercised within the limits of reason?
MR. OLSON: Yes.
INQUIRY: Well, then, isn’t it possible that when the court says she must accept under certain circumstances, what they mean is outside those circumstances, given the circumstances here it would be unreasonable to refuse?
MR. OLSON: Well, what the court did was so constrain those circumstances, virtually to make them nonexistent.
INQUIRY: All right. So then what you’re arguing about is a determination by the state court of Florida as to what the circumstances are under state law where the action of a state official would or would not be reasonable.
MR. OLSON: I think that-yes, but I think that it has to be looked at in the context in which that was done when the state supreme court so constrained and says in its opinion shall accept these late returns until 5 p.m. on November 26th, and in the context there was no discretion left for the Secretary of State at all.
INQUIRY: Mr. Olson, may I ask you, because you’ve been skipping over what I thought was a key piece of the Florida legislation. The Florida Supreme Court said, there’s the deadline, and that conflicts with another provision of this law, the provision that says there shall be under certain circumstances recounts, and then there’s a rather detailed description of the process that’s necessary, the time line for when you can ask the recount is on the 6th day.
MR. OLSON: Up to.
INQUIRY: Yeah, up to. And it would be impossible in a populous county to in one day do what the statute instructs must be done when there’s a recount. The Florida Supreme Court said, it’s right in its opinion, there’s two conflicts, and the first one they mention straight out on page 21A of your appendix, is that there has to be a reconciliation between this, yes, there can be recounts and, yes, there’s a deadline. So they are trying to reconcile two provisions.
MR. OLSON: The first part of the recount provision to which you’re referring, Justice Ginsburg, says may conduct a recount. Under ce

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