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U.S. Supreme Court rules manual vote recounts unconstitutional

The U.S. Supreme Court delivers a major blow to the Gore campaign, ruling the latest Florida recount is unconstitutional

By Raju Chebium
CNN.com Correspondent

In this story: Details of the unsigned ruling How the justices split The concurring opinion The dissents RELATED STORIES, SITES

WASHINGTON (CNN) -- The U.S. Supreme Court late Tuesday overturned a Florida Supreme Court decision that ordered about 170,000 votes recounted by hand to resolve the stalled presidential election -- a ruling benefiting Republican George W. Bush.

"Seven justices of this Court agree that there are constitutional problems with the recount ordered by the Florida Supreme Court," according to a 7-2 "per curiam," or unsigned, opinion in Bush v. Gore. "The only disagreement is as to the remedy."

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The nation's highest court also sent the case back to the Florida court for further proceedings. But the U.S. Supreme Court dealt Democrat Al Gore a blow by forbidding the manual recounts on the grounds that they could not be finished by the Tuesday deadline, set by federal law, for state legislatures to choose electors.

Bush had challenged a Friday ruling by the Florida high court that ordered a manual recount of thousands of "undervotes" in most of the state's 67 counties. Without the recount of these ballots, which were rejected by voting machines, Gore won't gain the 25 Florida Electoral College votes that are crucial to his winning the presidency.

Although the ruling reflected a 7-2 split, the concurring and dissenting opinions revealed a 5-4 split along ideological lines, with the conservative faction ruling against the recounts and the liberal wing arguing the case lacked merit and the recounts must continue.

Broadly speaking, the 7-2 split was over the question of reversing the Florida court, but the 5-4 split was over the termination of manual recounts.

Denouncing the majority for stopping the manual recounts, Justice John Paul Stevens said the Bush campaign had no legal basis for its claims, other than an "unstated lack of confidence in the impartiality and capacity of the state judges."

"Otherwise, their position is wholly without merit," he wrote. "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," he said.

"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 the law," he added.

The ruling said the manual recounts should be abandoned because they are unconstitutional and cannot be completed by the deadline mandated by federal law.

"That date is upon us, and there is no recount procedure in place under the state Supreme Court's orders that comports with minimal constitutional standards," the ruling said.

"Because it is evident that any recount seeking to meet the December 12 date will be unconstitutional ... we reverse the judgment of the Supreme Court of Florida ordering a recount to proceed," the ruling said.

The Florida court's decision Friday, which said votes in some counties must be examined to glean "voter intent," is wrong, the justices wrote, noting that some paper ballots have indentations and some others have chads -- protruding pieces of paper from an incomplete punch.

The variations in the ballots and the lack of a uniform, statewide standard spelling out how the ballots should be counted, and by whom, means recounts are unconstitutional under the 14th Amendment's equal protection guarantee, the ruling said.

"The formulation of uniform rules to determine intent based on these recurring circumstances is practicable and, we conclude, necessary," the 13-page ruling said. "The press of time does not diminish the constitutional concern. A desire for speed is not a general excuse for ignoring equal protection guarantees."

The Bush campaign had argued that different Florida counties would use different methods for hand counting votes, and votes would be treated differently in violation of the 14th Amendment.

Since some counties would more closely examine some ballots, those ballots -- and the voters who cast them -- would be given greater weight in determining who won the razor-thin contest in Florida, the Bush camp has argued.

Bush leads Gore by 534 votes by the November 26 certification of the statewide ballot.

Bush lawyer Theodore Olson said during Monday's oral arguments that the Florida court violated Article II of the U.S. Constitution, which empowers legislatures to decide how electors will be chosen, and the Title III federal law.

Gore lawyer David Boies argued that the Florida court interpreted conflicting state statutes and did not violate any federal provisions. He also said differing ballot-recount standards are common in many states and the Florida court correctly relied on language in state election laws in ordering manual recounts to determine "voter intent."

The ruling does not identify the authors. But strongly worded concurring and dissenting opinions indicated a greater rift than the 7-2 difference.

Chief Justice William Rehnquist and Justices Antonin Scalia, Clarence Thomas, Sandra Day O'Connor and Anthony Kennedy seemed to form a five-justice majority in favor of reversing the Florida court and halting the recounts. O'Connor and Kennedy, considered the key swing votes, did not attach their names to a concurring opinion signed by Rehnquist, Scalia and Thomas.

But clues that O'Connor and Kennedy sided with the majority came from the names on concurring opinions -- Justices Stephen Breyer, Ruth Bader Ginsburg, David Souter and Stevens wrote dissents to parts of or the entire unsigned opinion, forming the four-justice minority.

Justices indicated at the end of the 13-page ruling that they were uncomfortable with having to resolve a presidential election.

"None are more conscious of the vital limits on judicial authority than are the members of this Court, and none stand in more admiration of the Constitution's design to leave the selection of the President to the people, through their legislatures, and to the political sphere," the ruling said.

"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," according to the ruling.

In a concurring opinion providing added rationale for overturning the Florida court, Rehnquist wrote that the reversal was also justified under Article II as the Bush team had argued.

The court released its decision in a booklet, about 10 p.m. Tuesday

In the opinion also joined by Scalia and Thomas, the chief justice wrote that the U.S. Supreme Court normally defers to "state courts on issues of state law."

But Bush v. Gore, he wrote, is one of a "few exceptional cases" that presents a clear federal question because it involves a presidential election.

Invoking an 1892 high court ruling, Rehnquist said Article II clearly gives legislatures the authority to decide how electors must be chosen. The Title III federal law provides states a "safe harbor" from Congress choosing the electors if the states fail to do so by December 12, he wrote.

In Florida, the Legislature delegated the power to choose electors to the secretary of state, who is responsible for certifying the statewide vote tally and awarding all 25 electors to the winner of the presidential contest, Rehnquist wrote.

"If we are to respect the Legislature's Article II powers," he wrote, "we must ensure that post-election state-court actions do not frustrate the legislative desire to attain the 'safe harbor' provided by" section five of the Title III law.

"With respect to a presidential election, the (Florida Supreme Court) must be mindful of the Legislature's role under Article II in choosing the manner of appointing electors and deferential to those bodies expressly empowered by the Legislature to carry out its constitutional mandate," he wrote.

Those words indicate that Rehnquist and other conservative justices agree with Bush's contention that the Florida court usurped the Legislature's power by extending the state-law-imposed November 14 deadline for certifying the statewide vote. The state court had ordered manual recounts after that date and instructed Florida Secretary of State Katherine Harris to include those totals to the statewide tally.

In dissenting from a portion of the 7-2 ruling, Breyer wrote that Bush v. Gore should have been rejected out of hand.

"The Court was wrong to take this case. It was wrong to grant a stay," he wrote, referring to the Saturday order blocking -- "or staying" -- the recounts until the court had had a chance to rule. "It should now vacate that stay and permit the Florida Supreme Court to decide whether the recount should resume."

"The political implications of this case for the country are momentous," Breyer continued. "But the federal legal questions presented, with one exception, are insubstantial." The "exception" Breyer referred to was a problem with the equal protection clause.

Breyer wrote that, in fact, the correct solution to the problem of different ballots and different methods of counting them was to recount "all undercounted votes in Florida" under a single standard.

He also disagreed that Title III imposes a concrete deadline, arguing that Florida could finish a recount by December 18, the date electors must vote under the same law.

"By halting the manual recount, and thus ensuring that the uncounted legal votes will not be counted under any standard, this Court crafts a remedy out of proportion to the asserted harm," he wrote. "And that remedy harms the very fairness interests the Court is attempting to protect."

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December 10, 2000

Supreme Court of the United States
Supreme Court of Florida

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