John Paul Stevens: Bush v. Gore Decision Rationale Was 'Unacceptable'

[Hell Hath No Fury]

39. Good lord -

the ignorance of some here. John Paul Stevens was one of our best Justices, coming down on the right side almost every time, including Bush v. Gore.

Bush v. Gore was, at it's core according to the Minority, about the State of Florida having the final say in their election process v. the Federal Government. The Supreme's Majority's opinion rationale is what Stevens is referring to. This in particular:

"Moreover, the court’s interpretation of 'legal vote,' and hence its decision to order a contest-period recount, plainly departed from the legislative scheme. Florida statutory law cannot reasonably be thought to require the counting of improperly marked ballots. Each Florida precinct before election day provides instructions on how properly to cast a vote, §101.46; each polling place on election day contains a working model of the voting machine it uses, §101.5611; and each voting booth contains a sample ballot, §101.46. In precincts using punch-card ballots, voters are instructed to punch out the ballot cleanly:

AFTER VOTING, CHECK YOUR BALLOT CARD TO BE SURE YOUR VOTING SELECTIONS ARE CLEARLY AND CLEANLY PUNCHED AND THERE ARE NO CHIPS LEFT HANGING ON THE BACK OF THE CARD.

Instructions to Voters, quoted in Touchston v. McDermott, 2000 WL 1781942, *6 & n. 19 (CA11) (Tjoflat, J., dissenting). No reasonable person would call it 'an error in the vote tabulation,' Fla. Stat. §102.166(5), or a “rejection of legal votes,” Fla. Stat. §102.168(3)(c),4 when electronic or electromechanical equipment performs precisely in the manner designed, and fails to count those ballots that are not marked in the manner that these voting instructions explicitly and prominently specify. The scheme that the Florida Supreme Court’s opinion attributes to the legislature is one in which machines are required to be 'capable of correctly counting votes,' §101.5606(4), but which nonetheless regularly produces elections in which legal votes are predictably not tabulated, so that in close elections manual recounts are regularly required. This is of course absurd. The Secretary of State, who is authorized by law to issue binding interpretations of the election code, §§97.012, 106.23, rejected this peculiar reading of the statutes. See DE 00—13 (opinion of the Division of Elections). The Florida Supreme Court, although it must defer to the Secretary’s interpretations, see Krivanek v. Take Back Tampa Political Committee, 625 So. 2d 840, 844 (Fla. 1993), rejected her reasonable interpretation and embraced the peculiar one. See Palm Beach County Canvassing Board v. Harris, No. SC00—2346 (Dec. 11, 2000) (Harris III).

But as we indicated in our remand of the earlier case, in a Presidential election the clearly expressed intent of the legislature must prevail. And there is no basis for reading the Florida statutes as requiring the counting of improperly marked ballots, as an examination of the Florida Supreme Court’s textual analysis shows. We will not parse that analysis here, except to note that the principal provision of the election code on which it relied, §101.5614(5), was, as the Chief Justice pointed out in his dissent from Harris II, entirely irrelevant. See Gore v. Harris, No. SC00-2431, slip op., at 50 (Dec. 8, 2000). The State’s Attorney General (who was supporting the Gore challenge) confirmed in oral argument here that never before the present election had a manual recount been conducted on the basis of the contention that “undervotes” should have been examined to determine voter intent. Tr. of Oral Arg. in Bush v. Palm Beach County Canvassing Bd., 39—40 (Dec. 1, 2000); cf. Broward County Canvassing Board v. Hogan, 607 So. 2d 508, 509 (Fla. Ct. App. 1992) (denial of recount for failure to count ballots with “hanging paper chads”). For the court to step away from this established practice, prescribed by the Secretary of State, the state official charged by the legislature with “responsibility to … [o]btain and maintain uniformity in the application, operation, and interpretation of the election laws,” §97.012(1), was to depart from the legislative scheme."