Nov 022004

In honor of Election Day, I decided to write each Justice of the Supreme Court. I wanted to invite them to cast their own personal vote, right along with the rest of Americans, at their polling place, but to leave the final selection of President to electorate as a whole.

With slight modifications for each Justice (some did discent from the 2000 Bush v. Gore decision), the following letter was sent to each Justice.

November 2, 2004

Chief Justice William H. Rehnquist
Supreme Court of the United States
Washington, DC 20543

Dear Chief Justice Rehnquist:

I am certainly not a constitutional scholar (I’m not even an attorney), but I am an American Citizen. I have read the Constitution and studied it some, and I find nowhere that it empowers the judiciary to appoint the President. I implore you to protect our democracy and refrain from judicial involvement in the election process. Thomas Jefferson said, “The elective franchise, if guarded as the ark of our safety, will peaceably dissipate all combinations to subvert a Constitution, dictated by the wisdom, and resting on the will of the people.” While I share Jefferson’s belief in the strength of our democracy, I fear it cannot withstand another debacle such as visited on the electorate by the Supreme Court during the 2000 election.

Judges shouldn’t cast themselves as national saviors in political disputes. These cases are so likely to distort their judgment and inflame their passions that judges on both sides of the political aisle can’t reliably evaluate the consequences of a decision to intervene. By rushing to hand Mr. Bush the 2000 election that he might well have won without the Court’s help, you tarnished his legitimacy far more than any manual recount could have done.

As Alexander Hamilton wrote, “A share in the sovereignty of the state, which is exercised by the citizens at large, in voting at elections is one of the most important rights of the subject, and in a republic ought to stand foremost in the estimation of the law.”

Bush v. Gore’s ruling mocks legal reasoning and represents an affront to the rule of law. It constitutes an assault on federalism and the separation of powers, both of which you pretend to love. And it makes a mockery of the phrase “judicial restraint.” The Court’s ruling in 2000 usurped the role of the Florida Supreme Court in interpreting state law. It usurped the role of the American people by halting the counting of ballots in a presidential election and effectively choosing the president for them. It usurped Congress’ powers to accept or reject the states’ Electoral College votes. And it reversed the proper distribution of powers in federal government by having Supreme Court justices appoint the president rather than vice versa.

From the beginning, Bush desperately sought, as it were, to prevent the opening of the door, the looking into the box–unmistakable signs that he feared the truth. In a nation that prides itself on openness, instead of the Supreme Court doing everything within its power to find a legal way to open the door and box, they did the precise opposite in grasping, stretching and searching mightily for a way, any way at all, to aid their choice for President, Bush, in the suppression of the truth, finally settling, in their judicial coup d’tat, on the untenable argument that there was a violation of the Fourteenth Amendment’s equal protection clause–the Court asserting that because of the various standards of determining the voter’s intent in the Florida counties, voters were treated unequally, since a vote disqualified in one county (the so-called undervotes, which the voting machines did not pick up) may have been counted in another county, and vice versa. Accordingly, the Court reversed the Florida Supreme Court’s order that the under-votes be counted, effectively delivering the presidency to Bush.

To accomplish this feat, the court had to trample its own restrictive rules about who can even be heard in federal court. In equal protection cases, certainly those involving racial minorities, the Rehnquist Court has been adamant that plaintiffs seeking a hearing may not assert the rights of others or abstract principles of fairness but must establish standing by showing their own concrete personal injury at the hands of the government. Thus, in Allen v. Wright (1984), the court denied standing to African-American parents who wanted to compel the IRS to enforce the law by withdrawing tax exemptions from private schools that discriminate on the basis of race.

In most equal protection cases the aggrieved party, the one who is being harmed and discriminated against, almost invariably brings the action. But no Florida voter I’m aware of brought any action under the equal protection clause claiming he was disfranchised because of the different standards being employed. What happened here is that Bush leaped in and tried to profit from a hypothetical wrong inflicted on someone else. Even assuming Bush had this right, the very core of his petition to the Court was that he himself would be harmed by these different standards. But would he have? If we’re to be governed by common sense, the answer is no. The reason is that just as with flipping a coin you end up in rather short order with as many heads as tails, there would be a “wash” here for both sides, i.e., there would be just as many Bush as Gore votes that would be counted in one county yet disqualified in the next. (Even if we were to assume, for the sake of argument that the wash wouldn’t end up exactly 100 percent even, we’d still be dealing with the rule of de minimis non curat lex–the law does not concern itself with trifling matters.) So what harm to Bush was the Court so passionately trying to prevent by its ruling other than the real one: that he would be harmed by the truth as elicited from a full counting of the undervotes?

But in Bush v. Gore, you did not even ask, much less explain, how Bush was personally injured by the hypothetical possibility that anonymous third-party citizens might have their ballots counted differently in Florida’s presidential election. Nor, for that matter, did you ask how stopping the vote counting would redress those third-party injuries.

The Court?s ruling overrode not only the glaring standing problem but also the obstacles of federalism and the “political question doctrine.” Article II leaves it to “Each State” to appoint its electors, and the 12th Amendment provides that the “President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted.” The court should simply have deferred to the states and Congress. That is almost certainly what it would have done if Al Gore had been leading in Florida and had asked the court to stop an order of the Florida Supreme Court for a statewide manual recount of undercounted ballots upon a petition by George W. Bush.

The simple fact is, there were no injured plaintiffs as parties in Bush v. Gore available to complain about being disenfranchised by the court. Rather, the plaintiff was a candidate desperately looking for ways to prevent the counting of votes. The tragedy here is that the court ruling not only ordered actual disenfranchisement as the remedy for potential disenfranchisement but actually used voting rights rhetoric to nullify the right to vote. If there was an equal protection violation in Bush v. Gore, it is found not in anything Florida did, but in the very relief that the court ordered.

Varying methods to cast and count votes have been going on in every state of the union for the past two centuries, and the Supreme Court has been as silent as a church mouse on the matter, never even hinting that there might be a right under the equal protection clause that was being violated. Georgetown University law professor David Cole said, “[The Court] created a new right out of whole cloth and made sure it ultimately protected only one person–George Bush.” The simple fact is that you all did not have a judicial leg to stand on in their blatantly partisan decision.

Under Florida statutory law, when the Florida Supreme Court finds that a challenge to the certified result of an election is justified, it has the power to “provide any relief appropriate under the circumstances” (? 102.168(8) of the Florida Election Code). On Friday, December 8, the Florida court, so finding, ordered a manual recount (authorized under ? 102.166(4)(c) of the Florida Election Code) of all disputed ballots (around 60,000) throughout the entire state.

My limited understanding of Supreme Court rules is that a stay is supposed to be granted to an applicant (here, Bush) only if he makes a substantial showing that in the absence of a stay, there is a likelihood of “irreparable harm” to him. With the haste of a criminal, Justice Scalia, in trying to justify the Court’s shutting down of the vote counting, wrote, unbelievably, that counting these votes would “threaten irreparable harm to petitioner [Bush]…by casting a cloud upon what he claims to be the legitimacy of his election.” In other words, although the election had not yet been decided, Scalia was presupposing that Bush had won the election–indeed, had a right to win it–and any recount that showed Gore got more votes in Florida than Bush could “cloud” Bush’s presidency. Only a criminal on the run, rushed for time and acting in desperation, could possibly write the embarrassing words of the stay.

The proof that you knew the equal protection argument had no merit whatsoever is that when Bush first asked the Court, on November 22, to consider three objections of his to the earlier, more limited Florida recount then taking place, the Court only denied review on his third objection. Since the Court, on November 22, felt that this objection was so devoid of merit that it was unworthy of even being considered by it, what you subsequently learn about the equal protection clause that you apparently did not know in November that caused you, just three weeks later, on December 12, to embrace and endorse it so enthusiastically?

By the Court?s conduct, you forfeited the right to be respected. That an election for an American President can be stolen by the highest court in the land under the deliberate pretext of an inapplicable constitutional provision has got to be one of the most frightening and dangerous events ever to have occurred in this country.

In failing to remand Bush v. Gore to the Supreme Court of Florida for a new recount consonant with the U.S. Supreme Court majority’s enunciated Equal Protection ruling, this court willfully nullified the rule of law for a partisan political purpose, forcing a premature end to the counting of presidential election votes in the state of Florida on December 12, 2000.

In light of public and demonstrable conflicts of interest arising from the political affiliations and familial ties, by failing to recuse themselves from participation in Bush v. Gore, the justices in the majority violated set and certain ethical guidelines universally adhered to by judges at all levels of jurisdiction which guard against judicial decisions being tainted by bias and partiality, or the appearance of such impropriety.

In holding Bush v. Gore to be justifiable in federal court, abjuring numerous factors compelling its classification as a non-justifiable political question and otherwise dictating prudential abstention, these five justices usurped the powers lawfully belonging to a coordinate branch of the federal government (Congress), and to the state of Florida.?

Please exercise?your personal right to cast you vote at a poll, but, for the sake of on-going democracy, do not discount my vote by invoking some imagined constitutional power to override the elective process.

Sincerely yours,

B. John Masters

  No Responses to “The Supreme Court and The Election”

Comments (2)
  1. Per Curiam


    ALBERT GORE, Jr., et al.


    [December 12, 2000]

    Per Curiam.

    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.



    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.


    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.

  2. And your point here is???

Sorry, the comment form is closed at this time.