Federal vs. State Law

Visionaries: In the interest of strengthening our own state statutory provisions for exercising the citizen ballot and for preserving due process in disputes as to valid casting and canvassing of votes, I submit the US Supreme Court's minority opinion (written by Assoc. Justive Stevens) bearing on these vital relationships. His documentation (not repeated here) shows that the "federal" question of meeting federally established dates for certifying electors to the College of Electors in Washington, DC, have in the past been set aside in the interest of ensuring the "one man, one vote" principle guaranteed by the US Constitution, as amended, and by most state constitutions.While this post is a little long, you have a long holiday weekend to wade through it! Hope this bears some interest to those who cherish the value of each citizen's vote. If Justice Stevens' points are even halfway correct, it is clear that the US SC bent over backwards to accommodate "Dubbya's" insistence that he be crowned king not through the ballot box but by judicial decision. A NYTimes article (Dec. 21?) documents how Gov. Jeb Bush steered his governmental machinery so as to control every possible aspect of the electoral process after Nov. 7. It's time that citizens begin to take our democratic rights more seriously. WKM

                                                No. 00-949
                           GEORGE W. BUSH, et al., PETITIONERS v.
                                      ALBERT GORE, Jr., et al.

                     ON WRIT OF CERTIORARI TO THE FLORIDA SUPREME COURT

                                             [December 12, 2000]      [Note: Justice Souter wrote a separate dissent.]

Justice Stevens, with whom Justice Ginsburg and Justice Breyer join, dissenting.
The Constitution assigns to the States the primary responsibility for determining the manner of selecting the Presidential electors.
See Art. II, §1, cl. 2. When questions arise about the meaning of state laws, including election laws, it is our settled practice to accept
the opinions of the highest courts of the States as providing the final answers. On rare occasions, however, either federal statutes or

the Federal Constitution may require federal judicial intervention in state elections. This is not such an occasion.
The federal questions that ultimately emerged in this case are not substantial. Article II provides that "[e]ach State shall appoint, in
such Manner as the Legislature thereof may direct, a Number of Electors." Ibid. (emphasis added). It does not create state
legislatures out of whole cloth, but rather takes them as they come-as creatures born of, and constrained by, their state constitutions.
Lest there be any doubt, we stated over 100 years ago in McPherson v. Blacker, 146 U.S. 1, 25 (1892), that "[w]hat is forbidden
or required to be done by a State" in the Article II context "is forbidden or required of the legislative power under state constitutions as
they exist." In the same vein, we also observed that "[t]he [State's] legislative power is the supreme authority except as limited by the
constitution of the State." Ibid.; cf. Smiley v. Holm, 285 U.S. 355, 367 (1932).1 The legislative power in Florida is subject to
judicial review pursuant to Article V of the Florida Constitution, and nothing in Article II of the Federal Constitution frees the state
legislature from the constraints in the state constitution that created it. Moreover, the Florida Legislature's own decision to employ a
unitary code for all elections indicates that it intended the Florida Supreme Court to play the same role in Presidential elections that it
has historically played in resolving electoral disputes. The Florida Supreme Court's exercise of appellate jurisdiction therefore was
wholly consistent with, and indeed contemplated by, the grant of authority in Article II.

It hardly needs stating that Congress, pursuant to 3 U.S.C. § 5 did not impose any affirmative duties upon the States that their
governmental branches could "violate." Rather, §5 provides a safe harbor for States to select electors in contested elections "by
judicial or other methods" established by laws prior to the election day. Section 5, like Article II, assumes the involvement of the state
judiciary in interpreting state election laws and resolving election disputes under those laws. Neither §5 nor Article II grants federal

judges any special authority to substitute their views for those of the state judiciary on matters of state law.
Nor are petitioners correct in asserting that the failure of the Florida Supreme Court to specify in detail the precise manner in which
the "intent of the voter," Fla. Stat. §101.5614(5) (Supp. 2001), is to be determined rises to the level of a constitutional violation.2 We
found such a violation when individual votes within the same State were weighted unequally, see, e.g., Reynolds v. Sims, 377
U.S. 533, 568 (1964), but we have never before called into question the substantive standard by which a State determines that a vote
has been legally cast. And there is no reason to think that the guidance provided to the factfinders, specifically the various canvassing
boards, by the "intent of the voter" standard is any less sufficient-or will lead to results any less uniform-than, for example, the

"beyond a reasonable doubt" standard employed everyday by ordinary citizens in courtrooms across this country.3
Admittedly, the use of differing substandards for determining voter intent in different counties employing similar voting systems
may raise serious concerns. Those concerns are alleviated-if not eliminated-by the fact that a single impartial magistrate will ultimately
adjudicate all objections arising from the recount process. Of course, as a general matter, "[t]he interpretation of constitutional
principles must not be too literal. We must remember that the machinery of government would not work if it were not allowed a little
play in its joints." Bain Peanut Co. of Tex. v. Pinson, 282 U.S. 499, 501 (1931) (Holmes, J.). If it were otherwise, Florida's
decision to leave to each county the determination of what balloting system to employ-despite enormous differences in
accuracy4-might run afoul of equal protection. So, too, might the similar decisions of the vast majority of state legislatures to delegate

to local authorities certain decisions with respect to voting systems and ballot design.
Even assuming that aspects of the remedial scheme might ultimately be found to violate the Equal Protection Clause, I could not
subscribe to the majority's disposition of the case. As the majority explicitly holds, once a state legislature determines to select electors
through a popular vote, the right to have one's vote counted is of constitutional stature. As the majority further acknowledges, Florida
law holds that all ballots that reveal the intent of the voter constitute valid votes. Recognizing these principles, the majority nonetheless
orders the termination of the contest proceeding before all such votes have been tabulated. Under their own reasoning, the appropriate
course of action would be to remand to allow more specific procedures for implementing the legislature's uniform general standard to

be established.
In the interest of finality, however, the majority effectively orders the disenfranchisement of an unknown number of voters whose
ballots reveal their intent-and are therefore legal votes under state law-but were for some reason rejected by ballot-counting machines.
It does so on the basis of the deadlines set forth in Title 3 of the United States Code. Ante, at 11. But, as I have already noted, those
provisions merely provide rules of decision for Congress to follow when selecting among conflicting slates of electors. Supra, at 2.
They do not prohibit a State from counting what the majority concedes to be legal votes until a bona fide winner is determined.
Indeed, in 1960, Hawaii appointed two slates of electors and Congress chose to count the one appointed on January 4, 1961, well

after the Title 3 deadlines. See Josephson & Ross, Repairing the Electoral College, 22 J. Legis. 145, 166, n. 154 (1996).5 Thus,
nothing prevents the majority, even if it properly found an equal protection violation, from ordering relief appropriate to remedy that
violation without depriving Florida voters of their right to have their votes counted. As the majority notes, "[a] desire for speed is not

a general excuse for ignoring equal protection guarantees." Ante, at 10.
Finally, neither in this case, nor in its earlier opinion in Palm Beach County Canvassing Bd. v. Harris, 2000 WL 1725434
(Fla., Nov. 21, 2000), did the Florida Supreme Court make any substantive change in Florida electoral law.6 Its decisions were
rooted in long-established precedent and were consistent with the relevant statutory provisions, taken as a whole. It did what courts
do7-it decided the case before it in light of the legislature's intent to leave no legally cast vote uncounted. In so doing, it relied on the
sufficiency of the general "intent of the voter" standard articulated by the state legislature, coupled with a procedure for ultimate review
by an impartial judge, to resolve the concern about disparate evaluations of contested ballots. If we assume-as I do-that the members
of that court and the judges who would have carried out its mandate are impartial, its decision does not even raise a colorable federal

question.
What must underlie petitioners' entire federal assault on the Florida election procedures is an unstated lack of confidence in the
impartiality and capacity of the state judges who would make the critical decisions if the vote count were to proceed. Otherwise, their
position is wholly without merit. The endorsement of that position by the majority of this Court can only lend credence to the most
cynical appraisal of the work of judges throughout the land. It is confidence in the men and women who administer the judicial system
that is the true backbone of the rule of law. Time will one day heal the wound to that confidence that will be inflicted by today's
decision. One thing, however, is certain. Although we may never know with complete certainty the identity of the winner of this
year's Presidential election, the identity of the loser is perfectly clear. It is the Nation's confidence in the judge as an impartial guardian
of the rule of law.

I respectfully dissent.

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