Justice Souter's opinion

["Stephen Cooke" <scooke@uidaho.edu>]

Visionaries,
	This is the outcome I would have preferred.
Stephen Cooke


Cite as: 531 U. S. ____ (2000) 7
SOUTER, J., dissenting
In deciding what to do about this, we should take ac-count
of the fact that electoral votes are due to be cast in
six days. I would therefore remand the case to the courts
of Florida with instructions to establish uniform standards
for evaluating the several types of ballots that have
prompted differing treatments, to be applied within and
among counties when passing on such identical ballots in
any further recounting (or successive recounting) that the
courts might order.
Unlike the majority, I see no warrant for this Court to
assume that Florida could not possibly comply with this
requirement before the date set for the meeting of electors,
December 18. Although one of the dissenting justices of
the State Supreme Court estimated that disparate stan-dards
potentially affected 170,000 votes, Gore v. Harris,
supra, ___ So. 2d, at ___ (slip op., at 66), the number at
issue is significantly smaller. The 170,000 figure appar-ently
represents all uncounted votes, both undervotes
(those for which no Presidential choice was recorded by a
machine) and overvotes (those rejected because of votes for
more than one candidate). Tr. of Oral Arg. 61-62. But as
JUSTICE BREYER has pointed out, no showing has been
made of legal overvotes uncounted, and counsel for Gore
made an uncontradicted representation to the Court that
the statewide total of undervotes is about 60,000. Id., at
62. To recount these manually would be a tall order, but
before this Court stayed the effort to do that the courts of
Florida were ready to do their best to get that job done.
There is no justification for denying the State the oppor-
tunity to try to count all disputed ballots now.
I respectfully dissent.

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